McCain’s Moment -- Still
The detainees and the courts.


Hadley Arkes

President Bush has been discreetly scheduling a series of lectures around the country to discuss his “legacy.” It seems to have fled from his recognition that his legacy has been very much at stake in this current election, and even in his wounded state he is in a position to affect the outcome — not by lectures meant for the archives, but by framing some matters of urgency that are part of our public business even now, on the eve of the election. If the election of 2006 was a “thumpin’,” in Bush’s memorable phrase, a sweeping Democratic victory this year would represent an outright repudiation that could bring us to an even more advanced stage along the trajectory of the New Deal and the Great Society.

Bush has receded from the campaign and public controversies out of the sense that no one is really paying much attention to him any longer. As Peggy Noonan remarked, he has seemed more like a commentator or even a spectator. But a wake-up call to Mr. Bush would be much in order, even now: You are still president; you have levers to use in matters of national security; your use of those levers offers a rationale quite sufficient for you to speak on the things you are distinctly placed to do as the chief executive. The turmoil in the markets has commanded the prime place in the attention of the public, and tilted the election notably to the side of the Democrats. But the vagaries of the economy have not dissolved the problems of national security that still constitute the preeminent dangers before us.

Your administration has sounded the note of urgency on the matter of releasing detainees and the bizarre intervention of the courts. Judges have claimed an unprecedented authority to review the management of war on the battlefield, an authority that has never been permitted to unelected judges. For there has been no principle running deeper in the American regime, since the revolution itself, than this: The security of the American people may not be placed in the hands of officers, whether in the British Parliament or in American courts, who bear no direct responsibility to the people whose lives are at stake.

If this matter of national security is indeed urgent, Bush himself should sound that note of urgency. The sounding of that note would still remind the public, in a telling way, that there is a world of danger that has not been magically swept away by the romance of the Obama campaign.

Indeed, this note has already been sounded, first by Bush’s own attorney general this past summer, and more recently by White House officials, in objecting to the release of Chinese Muslims held at Guantanamo. But these notes, sounding a serious alarm, did not come with that note of urgency that only a President can impart. As Bush preserved his silence, that thoughtful, probing statement by Michael Mukasey was treated mainly as a technicality, of interest chiefly to lawyers and professors. The “thing needful” was to lift that statement from the domain of legal archives to the level of an urgent call for action. The attorney general tried to do this. Bush himself had the opportunity — and duty — to do it. But he has conspicuously failed to do so.

If he remains unwilling, it is up to John McCain, by himself, to fill this gap, in the hours that remain.

In his notable statement on July 21, Attorney General Mukasey offered the most precise critique of the decision of the Court in the Boumediene case, handed down in June. For the first time the Court extended the rights of habeas corpus to prisoners detained in a war. Mukasey showed, with the precision of a seasoned judge, just where that decision was wanting, as a standard to guide judges in this novel terrain.