The Worst Decision

by digby

If you wondered whether John McCain was a just a partial or a complete jackass before now, this will surely end all speculation:

Republican presidential candidate John McCain on Friday sharply denounced a Supreme Court decision that gave suspected terrorist detainees a right to seek their release in federal courts.

"I think it's one of the worst decisions in history," McCain said. "It opens up a whole new chapter and interpretation of our constitution."

McCain is one of the authors of the 2006 Military Commissions Act which set up procedures for the handling of detainees. The act denied the detainees access to federal courts.

The Supreme Court on Thursday said that provision of the law violated the constitution.

McCain on Thursday said he had not read the ruling and reserved his criticism. But on Friday, speaking to about 1,500 people at a town hall meeting in Pemberton, N.J., he attacked the decision, saying the law he helped write "made it very clear that these are enemy combatants, they are not citizens, they do not have the rights of citizens."

Yeah right, up is down and black is white as usual.

It's clear they're going to run on this. Faithful hound Huckleberry said:

"What happened yesterday was unprecedented," Graham said. "Americans are going to be shocked to find that that mastermind of 9-11, Khalid Sheikh Mohammed, now has the same legal standing as an American citizen."

Some will be shocked to find out that he wasn't drawn and quartered, but that doesn't have anything to do with the fact that all prisoners have basic human rights. The right to petition for habeas corpus is about as fundamental to our nation as it gets.

McCain is a bloodthirsty man, always has been. He's not one of those guys who comes from military culture and learned the limits of war and came to suspect the military industrial complex, like Ike. He's a hot tempered, flyboy type, unsuited to leadership and not known for thoughtful contemplation.

Reckless ambition for high office is a sad and tragic place for him to end up. His experience gives him tremendous credibility to be an historic leader on this issue. But he's being a political whore, as he is so often, completely ignoring his duty to the constitution and the necessity of putting the United States on some sort of moral footing after these eight years of perfidious constitutional radicalism.

Jack Balkin wrote a great piece this week called This Is What A Failed Revolution Looks Like. The usurpation of the constitution that was first proposed during Reagan and then implemented more fully under Bush has been more or less successfully struck down by the Supreme Court with the four GWOT cases: Hamdi, Rasul, Hamdan, and now Boumediene. But Balkin points out something that is extremely important about how and why that happened:

No matter whether the Supreme Court is conservative or liberal ideologically, it tends to be conservative institutionally. That is, it does not get behind a proposed constitutional revolution unless it is quite clear that the country is also behind it and demonstrates this support over a sustained period of time. Until that proof is made, the Court tends to resist implementation, or temporize, or a bit of both.

This is largely what happened between 2004 and 2008. The Supreme Court resisted the most extreme features of the Administration's proposals but did not completely reject what the Administration was attempting to do. Although Hamdi is often seen as a defeat for the Bush Administration, it actually legitimated preventive detention according to the laws of war, and offered only limited due process rights to detainees. Rasul and Hamdan were decided as statutory cases with decidedly constitutional overtones. Yet if the Republicans had continue to win victories in Congress and maintained strong public support for the war on terror and the war in Iraq, the Court would probably have eventually given way. However, that's not what happened.

Bush's proposed revolution lost steam for three reasons. First, to his credit, there was no successful terrorist attack on U.S. soil after 9/11. Initial public fear gave way to public distrust about the Administration's heavy handed tactics and a native American libertarianism reemerged. (Ironically, the very distrust of government that movement conservatism responded to worked against Bush's revolution.). Second, the public grew increasingly concerned about reports of torture and mistreatment at Abu Ghraib, at Gitmo, and at CIA black sites. All of these reports greatly damaged America's image as a symbol of liberty around the world and distrubed Americans image of themselves as the good guys who were (or should be) morally superior to their enemies. Third, Bush's adventure in Iraq, which he repeatedly claimed was intrinsically connected to the global war on terror, did not succeed, and while the surge has stabilized the situation temporarily, it has not led to the political solution that was its purpose. It's also worth noting that the Supreme Court did not begin hearing these cases until 2004, when the initial ardor following 9/11 had cooled considerably, and when the President's political standing had begun to slide. By the time Boumediene was decided, support for Bush and his unilateral vision of the Presidency was very weak indeed.

If things had turned out differently: if there had been more successful terror attacks on U.S. soil, or if the Iraq war had been a resounding success, the Republicans might have increased their numbers in Congress greatly, and they might well have been set for a sustained period as the majority party in the country, leading a successful constitutional revolution that fulfilled the hopes of the conservative movement. (The goals of that movement, however, would have been transformed by the focus on the war on terror, in the way described above.).

As it happened, this did not come to pass. Bush is now one of the most unpopular presidents in modern American history. The Republicans have lost control of both houses of Congress. Their party may lose even more seats in the next election, and the Democrats may return to the White House.

Elections have consequences beyond whether or not certain promised legislation was accomplished. Influencing public opinion has effects beyond winning a majority. These institutions are run by humans and the zeitgeist matters. (I would even go so far as to say that a lingering sense of discord from Bush vs Gore may have had an affect on these cases.)

The lesson for us is that civic involvement is important even if you feel like you are screaming into the void. Whatever you may think of them personally, people like Cindy Sheehan make a bigger difference than we think --- her encampment at Crawford the summer of 2005 was a turning point in public opinion on the war. People who studied the issues on blogs and elsewhere and took that information into their workplaces and dinner tables also made a difference. Joining advocacy groups, getting out the vote, donating what you can spare --- all of it. That's what creates the political environment in which these people govern our country and they are acutely aware of what's going on out there more than ever before. It matters.

I believe that John McCain will be defeated in November. But we can't take anything for granted. There is no doubt now that there is nothing --- nothing --- that John McCain won't do or say to get elected.

Update: This is also why we need more people like this in the congress.