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Defending McCain Against My Will



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I am compelled to come to John McCain’s defense against George Will’s column today. With respect to the five justices conferring standing on alien, unlawful, enemy combatants to seek habeas review in federal district courts, Will writes, in part:

As such, the Supreme Court’s ruling only begins marking a boundary against government’s otherwise boundless power to detain people indefinitely, treating Guantanamo as (in Barack Obama’s characterization) “a legal black hole.” And public habeas hearings might benefit the Bush administration by reminding Americans how bad its worst enemies are.
That “black hole” was neither created yesterday nor by George Bush. It has been the practice and law in this country since its beginning. It was the position of the Supreme Court in Eisentrager 58 years ago. And that “black hole” exists for two primary reasons: 1. to detain unlawful and lawful combatants until the end of hostilities, thereby keeping them off the battlefield where they can kill American soldiers and, in the case of terrorists, kill civilians (as they have extended the battlefield to our cities); and 2. to interrogate the detainees to secure information that might save the lives of American soldiers and civilians. Now, it seems to me that these are very important objectives. At least they were considered as such in past wars. If the issue is the length of this war (which has been shorter than many of our wars), Will and others should blame the enemy, not our government, for extending it.

Moreover, the attorneys for the enemy, led by the Center for Constitutional Rights, have made clear their motives. It is their purpose to use litigation to weaken our nation’s resolve. CCR’s president, Michael Ratner, is a William Kunstler protégé and worshipper of Che Guevara. There is plenty of public information about him and his group and their activities. Will should have encumbered his views with more facts regarding the bigger picture. This war is being fought not only overseas, but now in our courtrooms; we are winning in the former and losing in the latter.

Will goes on:

Critics, including Chief Justice John Roberts in dissent, are correct that the court’s decision clouds more things than it clarifies. Is the “complete and total” U.S. control of Guantanamo a solid-enough criterion to prevent the habeas right from being extended to other U.S. facilities around the world where enemy combatants are or might be held? Are habeas rights the only constitutional protections that prevail at Guantanamo? If there are others, how many? All of them? If so, can there be trials by military commissions, which permit hearsay evidence and evidence produced by coercion?

Roberts’s impatience is understandable: “The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date.” Ideally, however, the defining will be by Congress, which will be graded by courts.

Roberts is more than impatient. He is appalled. First Will claims that all the Court is doing is giving the enemy the ability to seek habeas in a federal court, now he unwittingly acknowledges that the Court is actually doing far more, i.e., compelling the development of an entire array of due-process rights for the enemy. And when the elected branches are done, the Court will then decide if it’s enough (of course, the Court never concludes it’s too much). What happened to Will’s concern for separation of powers, judicial supremacy, representative government, the Burkean notion of society learning from human experience, etc., etc.?

Perhaps this is why McCain considers it one of the worst decisions ever — and the possibility it could result in the release of a would-be mass murderer. Referencing the Cato Institute (of which I am a fan) or misapplying Marbury v. Madison doesn’t get Will anywhere.

I wonder if Will’s contempt for McCain (and I am no McCain cheerleader) runs so deep as to blind his usual clear thinking on these matters. Whatever the reason, this is a weak column.



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