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John McCain, Legal Historian

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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