Ed Whelan has criticized Ruth Marcus’s column already, but I want to zero in on one passage from it.
McCain’s sharp criticism of Boumediene, she writes,
makes little sense from a man who has repeatedly vowed to shut down Guantanamo — on his first day in office, no less — and ship its remaining prisoners to Fort Leavenworth.
After all, the whole point of stashing the detainees at Guantanamo was to avoid giving them the rights that everyone acknowledged they would have on U.S. soil. So the McCain solution — sending them to Leavenworth — would create the very situation he now decries.
I can see pros and cons to McCain’s Gitmo pledge. But it’s not clear that being on U.S. soil would automatically grant detainees all the rights that are being debated, let alone that “everyone acknowledged” as much. Here’s what a lawyer friend of mine wrote me on this point:
[I]n Hamdi (2004), the Supremes indicated that even an American citizen held in the U.S. as an enemy combatant should not have full-blown criminal defendant rights in a habeas proceeding to challenge combatant status. Justice O’Connor suggested that a [Combatant Status Review Tribunal] would probably be sufficient, as long as their was judicial review to ensure that it was a reasonably fair proceeding. To be sure, Boumediene seems much different in tone from Hamdi. But there is law on the books — recent law from many of the same justices in the Boumediene majority — suggesting that merely bringing the detainees into the U.S. does not mean they get the full run of constitutional rights or that their habeas proceedings must resemble civilian criminal trials.