McCain Wrong on "Detainees"

"Liberty and security can be reconciled....within the framework of the law......habeas corpus must be a part of that framework....."
Justice Anthony Kennedy, speaking for the US Supreme Court, in the decision on Boumediene v Bush, June 12, 2008.

"One of the worst decisions in the history of this country."
Senator John McCain, June 13, 2008, regarding this decision.

The Court ruled 5-4 that a provision of the Military Commissions Act of 2006 that denied "detainees" at the Guantanamo US Naval Base in Cuba (1) the right to file petitions of "habeas corpus" was unconstitutional. (The term "detainees", which is suggests students kept after school, is a euphemism for "prisoners," a more accurate description of their condition.) The Latin words "habeas corpus" mean "bring the body" and refer to a demand that an arrested person be brought into court for legal determination of the right of the government to hold him in custody.

Article I, Section 9, Paragraph 2, of the Constitution of the United States says, " The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

Senator McCain has argued that since the detainees are not American citizens, they are not entitled to the rights cited in our Constitution. However, the provision quoted does not limit the right of habeas corpus to US citizens, or even legal residents. Many other provisions of the document, including the amendments (particularly the Fourteenth) explicitly refer to the rights of citizens, but this provision does not.

Columnist Cal Thomas wrote, " Didn't the September 11 terrorists invade America for the purpose of harming us?" (2) Apparently Thomas believes that this "invasion" would trigger the exemption to the habeas corpus right cited in the Constitution. This is a stretch: all 19 terrorists entered the US with valid visas, despite the fact that some were on CIA lists of persons who had been trained by Al Qaida. (3) The inability of our government to properly screen visa applicants does not make their entry any kind of "invasion".

The Court said, in effect, that our Constitution protects anyone under the control of our government, including prisoners-of-war, illegal aliens, drug-smugglers, and even suspected terrorists. Many American presidents have proclaimed that the United States supports the human rights of all people, not just those of Americans. They have often criticized dictators for holding people deemed "enemies of the state" in concentration camps, the Gulag and other prisons without trials. Now the Supreme Court has demanded that our own government implement its stated ideals, starting with the detainees at Guantanamo. Amen!

Senator McCain may be interested to note that three of the five justices who rendered this decision were appointed by previous Republican presidents: Anthony Kennedy (Ronald Reagan), David Souter (George H W Bush) and John Paul Stevens (Gerald Ford). Would a President McCain appoint jurists with less reverence for Constitutional rights?

McCain may be a moderate, and he may be a maverick, but he is not "your father's Republican."

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(1) The land on which the base is located was leased from Cuba in 1903, and the lease renewed in 1934 in perpetuity. In 1962 Cuban dictator Fidel Castro demanded the US leave Guantanamo, but the US has refused to terminate the lease.

(2) "Ruling on Detainees Harmful", Milwaukee Journal Sentinel, June 19, 2008, page 11A. (Op-Ed Page)

(3) Most entered on student visas, since they planned to attend flight schools. Months after the attacks, terrorist pilot Marwan Al-Shethi received a 6-month extension of his visa. (I am not making this up!)