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

[anpu]

I don't care what one's political view happens to be. John McCain does not deserve a vote from any person whether they are middle class, rich, poor, blue collar worker, Republican, Democrat, redneck, African-American, or racist. It is clear that John McCain does not think for himself or is losing his mental faculties. In either case, it is not good for America. To vote this man into office would be one of the worst things, we as American, could do.

Forget whether Obama can explain his position on Iraq withdrawl, women, or even blue collar workers. That is becoming increasingly irrelevant as John McCain continues to open his mouth and demonstrate he can't think for himself or is losing his mental faculties. Things are too important at this particular time for us to have McCain making decisions that can literally destroy the infrastructure of America beyon repair.

[DietrichMoody]

McCain claims that his own personal history is the key to our Country's safety, but he could care less about America's history. He only cares about his own. But I digress.


Great that you point out the human rights behind Dred. McCain enemy combatants excuse flys in the face of this decision. Denying people human rights makes things worse for all. By the way, i am curious when these Military folks torturing get out, what are they going to come back to do: police officers, judges, government administrators. These guys have lost their humanity themselves and we all lose.


McCain also said that the bad people there, are going to get their ACLU lawyers to flood the courts about their diets and reading materials. It defeats his main point. If they are bad, let them be tried. McCain said "30 of the people who have already been released from Guantanamo Bay have already tried to attack America again" Remember, they were released before this decision. Why? because of the Administrations idiotic policies and also, there is no proof these 30 had initially tried to attack America the first time.


Last, I think your comparisons to McCain's Thursday AND Friday reactions to the same subject, show a man that cannot think for himself. It also looks like he cannot remember what he said the day before. Again, he only cares about what happened to him. That is why is is so fuc*in flippant on everything else.

[MsLiz]

Thank you for your good work and good explanation.

[blueinannarbor]

All three of these decisions by standards of a different day seem horrible, but without question, all three take a back seat to Bush v. Gore because there is absolutely no legal basis for that decision. What's is more tragic is that the opinion itself admits that.

[blueshield]

Great review, but many may not be clear on the hidden agenda which caused Mc.Bush to react angrily.

The Bush Admin has been pushing hard in many ways to make the Executive Branch of govt superior in fact and role to Congress and the SC. This habeas ruling cuts his legal argument for doing so off at the knees, and the Repub Justices on the court made it explicitly clear that this was their primary objection to the majority case.

The creeping attempt to make the Presidency more powerful is still actively being pursued - and Mc.Bush's reaction tells you exactly where he stands on this challenge to the Constitution. He is not "confused". Note that Arlen Spector, the ranking Republican Senator on the Judiciary Committee FILED A BRIEF WITH THE COURT SUPPORTING the majority and IS APPLAUDING THE RULING - for the reasons just outlined above.

[TimeJumper]

I am encouraged to hear someone who can grasp the connection between the latest in a series of court skirmishes and Chaney’s hidden agenda to expand the powers of the Executive Branch. This administration repeatedly needs to be reminded that it is the rule of law that guides us and not their rule.

[musselmanm]

We are all the color of, We the People!
We all are given the right to be treated as equals. In many countries all are not looked upon as equals. This is not the belief that our country was founded upon.
If John McBush is a candidate of change, I think that he would make this a very unpleasant place to live under his form of America.
Obama '08

[JuneHog]

Be careful, musselmanm--We are NOT given the right to be equal, or anything else. In our Anglo-American legal-political tradition, we come into this world with our rights. Jefferson wrote that we are "endowed by our Creator with certain unalienable rights," and however you want to interpret "creator," the point is we HAVE them. The Bill of Rights does NOT say "Citizens shall have the right..." because Madison and the framers understood the gov't and constitution could not give us something we already had. The Bill of Rights is framed in negative language: "Congress shall make no law..." that infringes on certain rights. The Bill is a restriction of the gov't by us (the People), not a grant of rights to us from the gov't. It is impossible in our tradition for this to happen; it is a physical impossibility.
This is an important distinction, because a gov't that can give rights can also take them away. The only real way our rights can be taken away (besides by due process, which is part of the tradition as well) is if we give them away out of fear. And that's why this decision is such a blessed relief.
Other than that little detail, I think you're right on. Peace.

[johannesrolf]

good point. the supremes, not a chicken filet, did not GIVE rights to the prisoners, it RECOGNIZED their rights.

[TimeJumper]

At the end of the day, Mr. McCain’s words will fade, for his observations are based on opinions borne out of fear and bolstered by those who rely on the uncertainty of the world. Only history will refocus the totality of the events that continue to unfold before us: per se it will be history that will judge those who either upheld our country’s ideals and principles or who abandoned them by the side of the campaign trail in exchange for political fortunes in the field.

[Doofus]

After GWB, just what we need, another amateur
lawyer as president, in the form of John McCain.

Enough with the incompetents, already!

As we all know, the worst SCOTUS decision ever
was made back in December, 2000. That one will
stand as 'worst ever' for a loooong time.

[FullChat]

AMEN!

[cheforacle]

Scalia, in his dissent, cites examples of terrorist conduct of detainees who were released by the internal military process as reasons why this ruling to afford the remaining "enemy combatant" detainees (of which I believe there are 242 if I am not mistaken) habeas corpus review will cause future deaths of American soldiers. This is a patently preposterous claim. There is no reason to suspect that the District Court Judges who hear habeas corpus claims will do a worse job in sorting out who should continue to be held and who should be released. The military review panels failed in two distinct ways: (1) they held innocent people who had nothing to do with terrorism and (2) they released dangerous people who got out and committed acts of terrorism. They failed in both ways.

What I like about the Boumeddiene case is, after 6 years of holding all these people, it recognizes we cannot just view them like, say German prisoners, who were released upon signing of an armistice. If you buy the McCain/Lindsey Graham/Scalia argument we could just hold innocents not in any uniform indefinitely who have no relationship to Al Qaeda or the Taliban.

[MsLiz]

Although some of the Gitmo prisoners were innocent when they were sold to the US government, they are no longer innocent. They harbor thoughts of vengence against the US. So, we must keep them until they die to keep them exacting retribution.
This seems to be the essence of Scalia's thinking.

[cheforacle]

You're right that they are now different. But is it fair to continue to hold people who now hate us because we wrongly detained them.

[rmajh5]

With each passing day, I continue to find significant reasons why my choice for Obama remains intact. And today is no exception.

Today's Philadelphia Inquirer's headline ("McCain blasts detainee ruling') is a perfect example. I love this country precisely because of our Constitution and the freedoms it grants us. I love this country because we have thus far determined to live by our beliefs and not the beliefs of our enemies. But the Supreme Court vote on detainees held by American authorities (granting them the right to use our American court system) was a narrow decision at five to four and reflects the wide divide that continues to exist between the people within our nation, I can only hope that the eloquence found in the words of Justice Anthony Kennedy, the justice who wrote the majority opinion, will keep the majority of our citizens on the course chosen by our current slim majority on the court.

[seatea1967]

Fantastic! Thank you so much for this well-written and very clear lesson. This is why the study of history is so essential to making informed and reasoned decisions about the present. If we cannot see our previous mis-steps.­.. well...

We get the last 8 years, don't we?

[chicagojosh]

That's what we call a "flip flop," a "pander," a "lying through my teeth in order to try and gain some votes."

I am one of a great many who has stood in horror at the non-stop downfall of the John McCain this nation had grown to love and respect. The people to blame are George W Bush, Karl Rove, and all of the neo-con scum who have made those in the Republican party actually believe this Cheney-esque style of national security is the only way to win votes.

With every day that goes by, John McCain turns into just another Republican puppet.

[Suzie813]

Give me a break. John McCain is entirely responsible for himself, and so has no one else to blame.