McCain Pivots on Guantanamo

The news about Tim Russert is just too sad and I don't have anything original or insightful to say about it, so I'm going to write about something else that isn't likely to get the attention it deserves this weekend, namely, John McCain's decision to pivot wildly on the issue of Guantanamo Bay and go nuclear on the Supreme Court.

Yesterday, McCain gave a cautious, non-headline grabbing response to the Supreme Court's decision. He expressed some concern about the decision, but ended his remarks with this:

But it is a decision that the Supreme Court has made. Now we need to move forward. As you know I always favored closing Guantanamo Bay and I still think we ought to do that.

Sounds reasonable. But today McCain sounded a little, um, different:

The United States Supreme Court yesterday rendered a decision which I think is one of the worst decisions in the history of this country. Sen. Graham and Sen. Lieberman and I had worked very hard to make sure that we didn't torture any prisoners, that we didn't mistreat them, that we abided by the Geneva Conventions, which applies to all prisoners. But we also made it perfectly clear, and I won't go through all the legislation we passed, and the prohibition against torture, but we made it very clear that these are enemy combatants, these are people who are not citizens, they do not and never have been given the rights that citizens of this country have. And my friends there are some bad people down there. There are some bad people. So now what are we going to do. We are now going to have the courts flooded with so-called, quote, Habeas Corpus suits against the government, whether it be about the diet, whether it be about the reading material. And we are going to be bollixed up in a way that is terribly unfortunate, because we need to go ahead and adjudicate these cases. By the way, 30 of the people who have already been released from Guantanamo Bay have already tried to attack America again, one of them just a couple weeks ago, a suicide bomber in Iraq. Our first obligation is the safety and security of this nation, and the men and women who defend it. This decision will harm our ability to do that.

This is, to put it mildly, a whole lot of nonsense. First, the Court did not in any way hold that the Guantanamo detainees have "the rights that citizens of this country have." All it held was that they have the basic human right of habeas corpus, i.e., the right to challenge the basis of their detention before a neutral fact-finder. This most fundamental of human rights has long been held to apply to non-citizens, and it is not even remotely comparable to the constellation of rights and procedural safeguards granted to U.S. citizens by other sections of the Constitution.

Moreover, the suggestion that this ruling will somehow cause our court system to be deluged with frivolous lawsuits is preposterous on its face. According to the Department of Defense, there are only 270 detainees currently held at Guantanamo. Even if every one of them sought habeas relief, that would represent an utterly insignificant fraction of the overall federal docket. Moreover, these detainees would only be able to challenge the basis of their detention (i.e. whether they are, in fact, terrorists), not the kind of food or reading material they're given.

McCain knows all this. In fact, he's been saying for some time now that he wants to close Guantanamo and move all the detainees to Fort Leavenworth, a place that even the Bush Administration would have to concede is within U.S. sovereign territory.

But McCain has clearly made a strategic choice. He's decided that the key to winning in November is to play the terrorism card once more and try to convince people that his Democratic opponent is somehow in favor of bestowing all sorts of fancy rights on terrorists and/or just letting them all go. And in order to make that insultingly stupid argument, he's willing to abandon every sensible position he's ever taken on this subject.

It's strange. Flip-floppery is common in presidential politics, but typically candidates flip toward the center after flopping toward the right or left in the primary campaign. On issue after issue, however, John McCain has moved to the right over the past few months. He's becoming more insane on tax issues and more authoritarian on issues of civil liberties. I've never seen that before. I'm hopeful that it's a sign of weakness.