This excellent analysis makes two interesting points. The Supreme Court struck down not a unilateral exercise of power by George W. Bush, but the joint action of the two elected branches. So when Democratic Senators go popping off about how “Bush lost,” they might want to recall that the Court overrode their action as well. Typically overwrought rants, such as that of the New York Times (“the court turned back the most recent effort to subvert justice with a stirring defense of habeas corpus”), invert what actually occurred: two branches of government tried to craft a detailed procedure to provide terrorists more rights than any enemy detainees in history and the Court said “not good enough.”
And second, since the Court left open the possibility that Congress could go back to suspend the writ of habeas corpus formally and comply with the Constitution, it might be in the interests of Democrats politically to pass some measure which does this so as to avoid
the risk of allowing the detainees to retain full habeas rights. If they don’t act and a terrorist released as a result of a habeas petition commits some atrocity, the Dems will take a predictable political hit. Especially if Obama wins the presidential election, expect the Democrats to enact some sort of partial suspension of habeas corpus, combined with new, but limited statutory procedural rights for detainees.
I’d like to agree, but I’m skeptical. After all, the prospect of losing critical intelligence by failure to pass the FISA extension has not motivated Democrats to pass a bill (with needed telecom immunity). So why should the release of potentially dangerous Guantanamo detainees be any different?
Still, it is worth a try and might be a very shrewd move for John McCain. McCain has not made very much political hay out of Barack Obama’s position on FISA extension. But perhaps using his position in the Senate to introduce a measure to suspend habeas corpus formally (as the Court said would be required), albeit in a narrowly tailored way and with a military tribunal review procedure, would be a good idea. It would demonstrate McCain’s expertise on national security and put into aciton his view that these detainees do not “deserve the protections of the kind of judicial process that a citizen of the United States would have.”
And if Obama opposes it and makes clear he wants all of these detainees to have full access to the courts? Well, that would be a clarifying development. Remember: the issue here is not just providing some right of review through a military tribunal (that’s what President Bush and Congress tried to do) but granting full court access (with all the procedural rights attendant thereto) to detainees, at least 37 of whom, after release, returned to terrorist activities.
In short, McCain should put Obama’s feet to the fire: is he really in favor of letting the terror suspects stroll into federal court and use discovery requests and other legal mechanisms to blackmail the government into releasing them?