06/17/2008 11:21 pm ET Updated May 25, 2011

Newt Gingrich Pulls a Trent Lott

In my last post, I gave in to the temptation to respond to John McCain's comments on Friday, calling the Supreme Court's Guantánamo decision "one of the worst decisions in the history of this country," by asking how it might compare to several other horribles--Dred Scott v. Sandford (the case holding that blacks were not persons, undoing the Missouri Compromise and setting the stage for the civil war); Korematsu v. United States (upholding the forced removal of Japanese-Americans from the West Coast during WWII); and Plessy v. Ferguson (the "separate but equal" decision underlying seven decades of subsequent segregation). (George Will picked up on the theme with the same "worst case" list yesterday; this morning on the NPR show I was on, the best a spokesperson for the McCain campaign could do in response was say it wasn't productive to compare two terrible decisions, or words to that effect.)

But sure enough, on Saturday, Newt Gingrich came out and made explicit what the post implied: the right is so crazy that they believe the opinion giving men held at Guantánamo the right to go before a federal judge and ask it to decide whether they are wrongly detained is the equivalent of the decision that held that African-Americans had "no rights the white man was bound to respect." Here's a transcript, but go to the video for the full impact:

GINGRICH: I will say, I think the recent Supreme Court decision to turn over to a local district judge decisions of national security and life and death that should be made by the President and the Congress is the most extraordinarily arrogant and destructive decision the Supreme Court has made in its history.

More destructive than the Civil War? Oh wait, there's more:

INTERVIEWER: In its history?

GINGRICH: In its history. Worse than Dred Scott, for the following reason: The court has now knowingly stepped in, this morning's newspaper say, smugglers had actually gotten the design of a nuclear weapon, that we now have the evidence that people out there had a nuclear weapon design. And this court is saying that any random district judge, based on whatever their personal caprice is, whatever their personal ideological bias, can intervene with a terrorist in such a way.

... The problem with Obama is that he's wrong...He applauded this court decision. This court decision is a disaster which could cost us a city. The debate ought to be over whether or not you are prepared to risk losing an American city on behalf of five lawyers - it was a five to four decision - and five lawyers have decided that the Supreme Court counts more than the Congress and the President combined in national security.

Not content to insult the Justices of the Supreme Court, Gingrich apparently went on to characterize all federal district court (trial-level) judges as "nutcake" later in the interview.

First of all, what the hell is he talking about? That nuclear weapon reference came right out of left field. (It reminds me of a habeas case I did for a stateless Palestinian - Farouk Abdel-Muhti - where we argued he had to be released from immigration detention because he had no country to be deported to. The government delayed his habeas corpus hearing for two months to submit an "administrative record," which included the allegation that a jailhouse informer had indicated that "Abdel Muhti has knowledge of suitcase nuclear weapons inside the United States." Needless to say, the court ordered him released 9 days after we finally got around the delays and got a hearing. He died of a massive heart attack three months later, after 23 months in pointless detention, the government having repeatedly lost his blood pressure medication prescription records during that time because administrators misspelled his last name in the prison computer system. Puts our Guantánamo habeas delays in perspective.) And what "personal ideological bias" does he have in mind? Those judges who ascribe to the ideology of ... allowing our cities to get blown up by homicidal maniacs? Those who have in the past coddled nuclear weapons smugglers?

Second, safety and liberty not at war with each other. They're not locked in some kind of "balance," one always traded off for the other. Instead liberty is a means of ensuring an open society that is structurally predisposed to expose incompetent government before it can do more damage. (Conversely, as Pat Moynihan famously put it - alluding to the Eastern Bloc - "Secrecy is for losers.") Hiding detentions from the scrutiny of the courts will not convince the rest of the world that we are not engaged in a Global War on Islam; will not help sort out the innocent from the guilty; and will not allow the public to determine whether the executive is doing a competent job in capturing the guilty. And note well: Habeas is merely the right to ask a neutral decisionmaker whether you are wrongly held - not a "get out of jail free" card. As the Court put it on Thursday: "Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law."

Third (and commenters, please discuss this among yourselves): Why is this not as bad as Trent Lott's comments celebrating Strom Thurmond's segregationist past? Why isn't Gingrich being forced to apologize to black Americans? To all of us?

--June 17, 2008

P.S. Meanwhile, more on McCain's hypocrisy here:

McCain and Graham's objections sharply contrast with their positions in 2003, when they wrote a letter to then-Defense Secretary Donald Rumsfeld, urging him to swiftly resolve the status of Guantanamo detainees:

The treatment of the detainees is not an issue. However, a serious concern arises over the disposition of the detainees - a considerable number of whom have been held for two years. [...]

Yet, we firmly believe it is now time to make a decision on how the United States will move forward regarding the detainees, and to take that important next step. A serious process must be established in the very near term either to formally treat and process the detainees as war criminals or to return them to their countries for appropriate judicial action.

On Dec. 13, 2003, the New York Times also reported that McCain said, "They may not have any rights under the Geneva Conventions as far as I'm concerned, but they have rights under various human rights declarations. And one of them is the right not to be detained indefinitely."

Five years after their letter, just one detainee has received a verdict. Approximately 270 are still detained there and "about half are considered too dangerous to release, even though the government does not have enough evidence to charge them."

This Supreme Court ruling will inevitably lead to a "flood of new litigation" challenging the Bush administration's right to hold these detainees. Detainees will then finally get a decision as to their status -- exactly as McCain and Graham requested.

In light of these 2003 remarks, it's unclear why McCain considers this Supreme Court ruling the "worst decision in history," except for the fact that it isn't what the Bush administration wanted.