Okay, so not such a gift.
Sen. McCain recently gave an interview to the German publication Spiegel. [H/t: Laura Ingraham.] It is disturbing on several levels (justifying, I think, a number of the concerns I raised last week, here). But for present purposes, here’s what he had to say about the Gitmo enemy combatants:
SPIEGEL: America has lost a lot of friends because President George W. Bush angered, indeed outraged, them. He allowed human rights to be violated at Guantanamo Bay, and he dismissed the joint effort to combat global warming. Under a President McCain, could we expect a change of course?
McCain: Yes. I would announce that we are not ever going to torture anyone held in American custody. I would announce that we were closing Guantanamo Bay and moving those prisoners to Fort Leavenworth, Kansas, and I would announce a commitment to addressing climate change and my dedication to a global agreement — but it has to include India and China.
This answer is just depressing. We have not violated human rights at Gitmo, yet McCain not only accepts the premise but takes the opportunity to grandstand on torture, intimating that President Bush has presided over a torture regime. (And this despite the fact that, even if you accept the dubious premise that waterboarding is always torture, McCain knew by the time of this interview that we had only only waterboarded three terrorists under emergency circumstances and had not used the tactic in about five years.)
Then McCain adds that he will close Gitmo and move the combatants to Kansas. Once they are there, of course, their lawyers will contend that they are now indisputably and lawfully within the jurisdiction of the U.S. courts, that those courts are open and functioning, and therefore that they have American constitutional rights, including the right to civilian trials.
So even assuming McCain continues to stand by his vote in favor of military commissions, and even if he thinks he will be able to conduct such commissions inside the U.S. (for which, concededly, there is precedent, such as the 1942 Quirin case), he would be dramatically decreasing the chance that such trials will happen.
To be clear: I have suggested the creation of a national security court and I believe it should be legally irrelevant whether combatants are held inside or outside the U.S. But it is not irrelevant unless Congress acts to make it irrelevant, which Congress has not done. Unless and until our lawmakers do something (and perhaps even after they did something) the courts would decide what rights the combatants have. And if Sen. McCain does not think the courts are likely to turn them into ordinary criminal defendants once he brings them here, then he hasn’t been watching the courts very closely for the last several years.
It is reckless to announce that the combatants will be brought into this country before the legal consequences of such an action have been determined.