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Guantanamo Decision Not "Worst in History"

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George Will takes issue with John McCain’s statement that the recent Supreme Court decision on Guantanamo detainees was one of the “worst decisions in history.”

Will’s complaint is as much about McCain’s hyperbole as it is about McCain’s opposition to the ruling. As Will notes, this is not a clear-cut matter and people of good will can certainly disagree. Will begins by suggestion some court decisions far worse than the most recent one and then duly notes the problems in the decision:

Critics, including Chief Justice John Roberts in dissent, are correct that the court’s decision clouds more things than it clarifies. Is the “complete and total” U.S. control of Guantanamo a solid-enough criterion to prevent the habeas right from being extended to other U.S. facilities around the world where enemy combatants are or might be held? Are habeas rights the only constitutional protections that prevail at Guantanamo? If there are others, how many? All of them? If so, can there be trials by military commissions, which permit hearsay evidence and evidence produced by coercion?

But Will also notes that habeas rights are a pretty essential part to maintaining a restrained government.

No state power is more fearsome than the power to imprison. Hence the habeas right has been at the heart of the centuries-long struggle to constrain governments, a struggle in which the greatest event was the writing of America’s Constitution, which limits Congress’ power to revoke habeas corpus to periods of rebellion or invasion. Is it, as McCain suggests, indefensible to conclude that Congress exceeded its authority when, with the Military Commissions Act (2006), it withdrew any federal court jurisdiction over the detainees’ habeas claims?

One of the more difficult questions we face in this war on terror is how to handle our prisoners at Guantanamo and, more generally, how to handle all current and future terrorists we capture. Do we treat the whole matter as part of our criminal justice system and have the military hand over all detainees to federal law enforcement? Or do we develop something more comprehensive that acknowledges this conflict is a little more broad and complex than some federal sting operation?

We must balance our need to protect our nation and citizens with our moral obligation to ensure we are not imprisoning innocent men and women. While I’m concerned with the logic behind the Supreme Court’s ruling as well as the fuzzy precedent it has created, I have to agree with George Will that granting habeas rights is an understandable position, in that it sets the legal bar at a bare minimum without de facto granting detainees full access to our court system.

Is it the best compromise? No – court-created compromises are usually more imperfect than even the imperfect compromises of legislatures. This is why Congress should now step in and rework the rules to accommodate habeas rights without junking the tribunal system which took so long to create. Instead of spouting off, McCain should use his role in the Senate to make the best out of the Court’s complicated ruling. But I guess in election year politics, “energizing the base” with hyperbolic rhetoric is more important than real governance.