John McCain, Legal Historian

Here's John McCain's initial reaction to the Supreme Court's decision in the Guantánamo detainees case, Boumediene v. Bush, on Thursday, the day of the decision:

"It obviously concerns me . . . but it is a decision the Supreme Court has made. Now we need to move forward. As you know, I always favored closing of Guantánamo Bay and I still think that we ought to do that."

Here's his reaction on Friday:

"The Supreme Court yesterday rendered a decision which I think is one of the worst decisions in the history of this country."

Wow! I guess the old boy gets pretty cranky after a good night's sleep. He also is astonishingly ignorant about American legal culture. Here's a suggested top three list of the worst decisions in American history for his perusal:

1. Dred Scott v. Sandford (1857): Case overturning the Missouri Compromise, and thereby precipitating the Civil War, which (to paraphrase Scalia's dissent yesterday) "almost certainly cause[d] more Americans to be killed" than would have happened otherwise. Declared a slave despite having been brought through free soil by his master, Scott was returned as property to his master's widow, who married an abolitionist running for office. Embarrassed, the abolitionist returned Scott to his previous slaveowners, who set him free nine months before his death - a luckier man than the five Guantánamo detainees who've died in custody. Holding that blacks "had no rights which the white man was bound to respect," the Court found Scott was not a "citizen" of the United States within the meaning of the federal Constitution. (Bonus worst-decision-ever points: the Court misspelled the name "Sanford" in the opinion.)

Lesson not learned: All people are people - and have human rights. In a recent case asking for money damages for torture and religious abuse at Gitmo--guards shaving the plaintiffs' beards and heads, deliberately interrupting during prayer time, kicking detainees' Korans, and, in one instance, throwing a copy in a toilet bucket--the court had to decide whether such religious abuse violated a law saying "government shall not ... burden a person's exercise of religion." Two judges agreed that, surely, Congress did not intend the word "person" to include nonresident noncitizens like the men at Guantánamo. Echoing Dred Scott, this interpretive turn was too much for the sole African-American judge on the panel, Janice Rogers Brown, who in a separate opinion wrote that the majority's reading of Congress' will was "at odds with [the statutory text's] plain meaning," adding "[t]here is little mystery that a 'person' is an individual human being ... as distinguished from an animal or a thing." Is that really so hard to figure out?

2. Korematsu v. United States (1944): Case upholding the exclusion of all persons of Japanese ancestry from Pacific Coast states during World War II. 110,000 loyal Japanese-Americans (70,000 of them citizens) are eventually moved into squalid internment camps as a result. Mass profiling takes place despite fact that there is no real evidence that anyone from community is involved in espionage or is conspiring to damage war effort. (Bonus worst-decision-ever points: memos justifying exclusion orders were written by future bleeding-heart-liberal Supreme Court Chief Justice Earl Warren.)

Lesson not learned: Profiling doesn't work. It wastes resources on following prejudices instead of focusing on threats that are real. In the real world, law enforcement works by getting tips and leads from members of the community. Profiling alienates the very communities the profiler believes are essential to help track down his suspects, the same communities the profiler wants to serve as his eyes and ears. Principle applies whether it's Japanese-Americans or, say, foreigners in Afghanistan in October 2001 being profiled into detention at Guantánamo.

3. Plessy v. Ferguson (1896): Case upholding racial segregation of railroad cars. Established "separate but equal" principle that became the legal foundation for the apartheid system in the deep south. (Bonus worst-decision-ever points: future Chief Justice Rehnquist said in a memo as a law clerk: "I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by 'liberal' colleagues but I think Plessy v. Ferguson was right and should be reaffirmed. ... To the argument... that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are.")

Lesson not learned: a majority may not deprive a minority of its constitutional rights, even when the majority are U.S. citizens and the minority are aliens held at a permanently-leased military base in Cuba.

* * *

I could go on with this list, but I think these few cases demonstrate a certain lack of perspective in our potential next Commander in Chief's view of our legal history.

To the remarks above, the Senator added: "We will regret very much in the days and months and years ahead this decision by the United States Supreme Court," predicting a "flood" of cases in the courts. (Curiously, this prediction was met with wild enthusiasm from the crowd.)

Just as Lawrence v. Texas indeed led directly to the judicial legalization of man-dog sex throughout America (exactly as Rick Santorum predicted it would), it's possible McCain is correct and the decision will return us to the state of terror which prevailed for the 791 years prior to the Military Commissions Act, during which judges wielding habeas corpus reigned over the Anglo-American world and we all lived in fear of imminent apocalypse as a result.

On the other hand, perhaps it is worth reflecting that detaining innocent men outside the reach of law, and thereby facilitating their abuse, is not calculated to make our nation look good in the eyes of the international community. It will not win over anyone's hearts and minds. It has already made our closest allies less willing to extradite criminal suspects to the United States and might similarly be expected to increase their reluctance to share intelligence information with us. It must also always be remembered that habeas corpus is not a get-out-of-jail free card. Instead, it merely allows courts to do what they do best: sort out those who should be detained from those who should not be.

As McCain (quoting Chief Justice Roberts' dissent) claimed, judges are indeed "unaccountable" to voters. That is precisely why they are well-situated to serve to hold the executive branch accountable for its abuses and incompetence. Measures that are popular with voters - including, from the cheers McCain rousted from his crowd on Friday, the notion of detaining foreigners without legal rights or judicial review - often leave us less safe than we would have been without them. Count that as today's "lesson unlearned" from the Supreme Court's historic decision.

-- June 14, 2008

Comments

[3Gs]

Shayana Kadidal, it seems you have real potential as a journalist, but this article is a bit skewed and seems to wander without making crucial points. Please explain to us how the paragraph assists the reader in understanding the point of your article.:

'Just as Lawrence v. Texas indeed led directly to the judicial legalization of man-dog sex throughout America (exactly as Rick Santorum predicted it would), it's possible McCain is correct and the decision will return us to the state of terror which prevailed for the 791 years prior to the Military Commissions Act, during which judges wielding habeas corpus reigned over the Anglo-American world and we all lived in fear of imminent apocalypse as a result.'

It seems like you took too much license at the expense of a good conclusion.

Thanks

[SonnyBono]

Seems to me that one of the Republican arguments for denying Habeas Corpus to prisoners in Guantanomo is that the prison is on foreign soil - Cuba so American rights under the Constitution do not apply.

So if that argument holds water - then Senator McCain's birth in Panama would disqualify him from becoming president since he was born on foreign soil where the US Constitution does not apply.

Quick someone alter Fox News so they can all get their undies in an uproar.

[rudiy]

Wow! "Separation of Powers" and “checks and balances” new concepts. Pesky problems the conservatives want to get rid of. After ridding ourselves of the judicial branch we can get rid of the Legislature. This way we can be sure that less 200 years of precedent and several Articles the Constitution would be “strictly” interpreted.

[MikeMidCity]

WTF Republicans hate the Constitution.

[pahpah25]

IS MCCAIN REALLY AS STUPID AS HE APPEARS TO BE........­.....ANY SCHOOL KID CAN TELL YOU..OF COURSE JUDGES ARE UNACCOUNTA­BLE.......­...THATS THE WAY IT SUPPOSED TO BE........­.....THE JUDGES MAKE THEIR DESICIONS IN THE SECURITY OF KNOWING THEY CANNOT BE 'THREATENE­D'........

[DMW1]

He graduated from Annapolis 894 out of 899 cadets:
http://www.stopthinkvote.com/facts/personalfacts.html

So, it's quite possible he is as stupid as he appears to be.

P.S.
Turn off caps lock.

[melonman]

Does McCain realize that the way judges are chosen is determined by our Constitution?

Perhaps he's got a better way?

[dwmulenex]

Draw the logical conclusion: John McCain knows about as much law as he does economics. He is no leader for the future. His campaign is based on generating sufficient fear among Americans that their lives are endangered if the Bush violations of law, human rights, and decency aren't maintained. It would in, MCCainWorld, be weakness to seek peace from strength, or to act respectfully toward the Constitition. In the crudest of ways, he wants to keep everything Bush set asunder in place, and double down on the worst-- and then place a few more cronies like Scalia on the Supreme Court who will have his back, and ignore the rule of law on which this nation was founded. If you want more war, more torture--rememeber Scalia said torture wasn't cruel and unusual punishment because it wasn't punishment--and more specious legal arguments by our first fascist Supreme Couryt Justice-- why then, McCain is your guy.

[sufi66]

We have been warned. We can't say we didn't know what would happen if we are crazy enough to give this guy power

WE HAVE BEEN WARNED!

[EbonBear]

Between his increasingly surreal statements and this idiocy, John McCain appears to be losing his mind.

Anyone who has ever studied law knows that judges are unelected deliberately to ensure they DON'T have to follow "the will of the people". The unelected and (in theory) independent nature of the judiciary allows it to make decisions which are principled but unpopular (which is not to say they can't get it dead wrong on occasion as the above cases illustrate); to guard AGAINST the tyranny of the majority, not to enable it.

Even if Scalia's verbose rant of a dissent were accurate (which it isn't), it is not the judiciary's responsibility to follow the whims of the majority or to protect the American people from possible terrorists. The judiciary's first, last and only duty is to state the law as they understand it.

[Doofus]

But presidents may be elected to follow the will of
(some of) the judges, in this case Scalia, et al., so
as to appoint more judges of that ilk, no doubt.

And that is precisely what will happen should the
Repo man get elected, again.

Never, never, never vote for the Repo man.

[pahpah25]

THE STRENGTH OF THIS COUNTRIESJUDICIAL SYSTEM IS THAT THO' WE MAY DISAGREE WITH A DESICION WE WILL SUPPORT THAT DESICION..­.......SCA­LIA WILL RANT...FIN­E.........­....BUT HE WILL SUPPORT HIS FELLOW JUDGES....­.MCCAIN IS DANGEROUSLY IGNORANT..­.....WE'VE HAD ENOUGH OF THAT FROM THE CURRENT OCCUPANT OF THE WH....

[UrsaMajority]

What's telling is McCain's overnight switch from (a) acquiescence to the logically uncontestable ruling to (b) condemning it as the worst decision ever. The man has so lost his moral bearing that he allows his gut instinct to be overridden by his demagoguer­y-favoring handlers.

And can anyone PLEASE explain how the simple right to eventually be taken before a judge for at least some explanation of reasons for the person's detention somehow puts America at risk? If the Fourth Circuit's handling of prior detention cases is any guide, courts will give enomous deference to any conclusion by the US Government that the detainee is guilty of something. How does a hearing -- which may well be held in secret -- somehow put us at risk that the imprisoned terrorist will somehow cause us to "lose a city" (as Gingrich put it)?

And, more directly, why does John McCain hate the Constitution and the Bill of Rights? They weren't passed just to give privileges to criminal defendants, but also to insure that we operate the best process for determining the truth of charges made. Otherwise, politicians pander to the public by saying they've "solved" or "prevented" a crime after arresting any suspicious character -- the prosecutorial equivalent of "mission accomplished" -- while allowing the truly guilty or dangerous to remain free -- increasing the risk of "losing a city". Why does John McCain favor a defective legal process that increases the risk of allowing terrorists to remain at large while we

[dsbsh]

"And can anyone PLEASE explain how the simple right to eventually be taken before a judge for at least some explanation of reasons for the person's detention somehow puts America at risk?"

Do I really need to spell it out for you? Giving these evil terrorists rights will embolden other terrorists, who up until now have been afraid to engage in terror for fear of being held indefinitely without charges or due process. And don't give me any BS about the fact that many of them aren't actually terrorists, http://www.mcclatchydc.com/detainees/story/38773.html; that suggests President Bush is wrong. We shouldn't be questioning the president in wartime. If he says they're terrorists, they're terrorists and should get no rights. That's what freedom is all about.

(In advance... the only thing sadder than people who believe this is people who don't get satire.)

[jteschke]

As is indicated by the post, had the anti-const­itutionali­sts had the fifth vote, this particular case would rank with the three discussed, denying law to non-whites, permitting citizens to be detained in concentration camps based on their ethnicity and "sep'ut but e'kul" as the horrific decisions in US history. McCain reveals himself as one willing to dismantle the rule of law in pursuit of power. Though the use of the term fascist is considered ad hominem in polite company here in yankeedom, the position taken by McCain fits the definition of fascist.

[Doofus]

The views of the 'originalists' on the Supreme Court
seem to mesh nicely with the views of the 'unitary
executives' in the Bush presidency, that the freedoms
guaranteed in the Constitution do NOT necessarily apply
to non-citizens.

[dsbsh]

That's because the Consitution, properly understood, is 100% consistent with conservative ideology. Justice Brennan described originalism perfectly in 1985: "arrogance cloaked in humility."

[noneIn2008]

McCain's is a classic neocon answer. It is their belief in an imperial Presidency, not the Constitution.

[demfriend]

Bush made his choices to sway the Supremes the way the administration wanted for them to go. The Supremes have made some fool decisoins because of that. Yet the Supremes have been given to make an occasional point of actual law which has always shocked me when it happens. The Gitmo choice is a sweet one for us and the world to see that the Supreme Court is a real seperate branch of government like it is supposed to be. We need more of the branches to be seperate now more than ever when Bush has blended them to his favor. The signing statements and his distain for the constitution should put Bush in a spot light that grows brighter every time his behavior and statements put us to shame.

[JustMusing]

According to John McCain everything the North Vietnamese did to him was perfectly legal.

[sufi66]

Good point.

He's like Bob Dole. Something bad happened to him and that was the end of compassion towards others.

So many others (like FDR) learned different lessons from an ordeal.

[barkingcat]

You know, JustMusing, I never looked at it that way (my blinders just came off) -- but you're exactly right. Following McCain's logic on this (and his support of Bush's torture policies), the treatment McCain suffered in Vietnam as a prisoner of war was legal.

McCain has indeed lost any moral bearings.

[MissKaren]

The separation of powers was DESIGNED to prevent the judiciary from being beholden to the executive. The fact that Congress has to vet and consent to the POTUS's nominees to the higher courts is one of the most important protections we have as a people. We cannot dispense of that. The court should never have gotten involved in the 2000 election -- it was not in their purview -- but that is in the past. It is hoped that it will never happen again and an imbecile never installed in the White House in the face of a majority of popular votes for someone who turned out much the better man. But that glitch does not negate the importance of an independent judiciary. I hope no POTUS ever gets that kind of power.

Fortunately, Obama taught Constitutional law and will remove the document from the Executive Office urinal where Bush was using it as a backsplash.

[DragonMama]

"Fortunately, Obama taught Constitutional law and will remove the document from the Executive Office urinal where Bush was using it as a backsplash­."

That would seem to imply he might, accidentally, on occasion, actually look at the document. Let's be serious, here. Every indication is that the document in question has long since found it's way through the U-bend.