John McCain on Habeas Corpus
Wednesday June 18, 2008
More About: Boumediene v. Bush | John McCain on Civil Liberties
Dred Scott v. Sandford (1857) essentially defined African Americans as subhuman. Plessy v. Ferguson (1896) established the doctrine of separate-but-equal. Schenck v. United States (1919) held that the government can imprison its critics. United States v. Thind (1923) held that Indians, being non-whites, cannot become naturalized citizens. Korematsu v. United States (1944) upheld the warrantless imprisonment of 110,000 Japanese Americans in detention camps during World War II.
According to John McCain, last week's Supreme Court ruling in Boumediene v. Bush, holding that the executive branch must respect habeas corpus rights even when dealing with enemy combatants, belongs on that list--as "one of the worst decisions in the history of this country." McCain went on to say:
If McCain's concept of presidential power has in fact shifted to match that of the Bush administration, then this would represent a stunning departure from his earlier history as a watchdog on issues pertaining to the separation of powers.
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According to John McCain, last week's Supreme Court ruling in Boumediene v. Bush, holding that the executive branch must respect habeas corpus rights even when dealing with enemy combatants, belongs on that list--as "one of the worst decisions in the history of this country." McCain went on to say:
We're now going to have the courts flooded with so-called "habeas corpus suits" against the government, whether it be about the diet, whether it be about the reading material. 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.Habeas corpus, or a prisoner's right to petition a court to ask why he or she is being imprisoned, has nothing to do with diet and reading material and everything to do with functioning as a nation of laws. Yesterday, conservative columnist George Will took McCain to task for his remarks:
Did McCain's extravagant condemnation of the court's habeas ruling result from his reading the 126 pages of opinions and dissents? More likely, some clever ignoramus convinced him that this decision could make the Supreme Court -- meaning, which candidate would select the best judicial nominees -- a campaign issue ...McCain's opposition to habeas corpus rights is only the most recent indication that he may have publicly adopted the unitary executive theory, and subsequently abandoned significant libertarian elements of his platform, since locking up the Republican nomination in March. A McCain campaign advisor has suggested that McCain now supports the Bush administration's warrantless surveillance program, which directly contradicts earlier statements McCain made in opposition to the program. McCain also indicated in March that while he personally considers torture illegal, the executive branch may legally define torture at will.
McCain, co-author of the McCain-Feingold law that abridges the right of free political speech, has referred disparagingly to, as he puts it, "quote 'First Amendment rights.'" Now he dismissively speaks of "so-called, quote 'habeas corpus suits.'" He who wants to reassure constitutionalist conservatives that he understands the importance of limited government should be reminded why the habeas right has long been known as "the great writ of liberty" ...
As the conservative and libertarian Cato Institute argued in its amicus brief in support of the petitioning detainees, habeas, in the context of U.S. constitutional law, "is a separation of powers principle" involving the judicial and executive branches. The latter cannot be the only judge of its own judgment.
If McCain's concept of presidential power has in fact shifted to match that of the Bush administration, then this would represent a stunning departure from his earlier history as a watchdog on issues pertaining to the separation of powers.
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Comments
This article is actually more about old issue of the Executive versus the Judicial, and thus begs the question of modern times, and that is should even the framework of the Constitution and the so-called “Rights” of the individual be re-examined with the consideration of the future of this nation as it exists in todays more complex world. Since no one knows what these “Rights” are as judged by the amount of cases presented to the Supreme Court for intrepretation. Since the Constitution was a reactionary document written in a different time for another more simple environment.
One of the main issue today is that of a third party and that is what “Rights” does a Society have as opposed to the some of the Rights of the individual or the Executive Branch (one of the dangers of the Executive Branch was of course FDR, whose actions were more like an Emperor or a Patron than a President).
In other words how much of the individual rights harm the rights or endanger the Society or even another individual by not allowing more leway by the Enforcement Organizations, and what are the Rights of Society and what should be the Rights of the Executive Branch which is more questionable philosophy in practice and who it actually represents.
It is an issue which must discussed in light of today, not using yesterdays arguments.
My how sophisticated and modern of the prior commentator. I haven’t read anything so modern since this essay http://www.worldfuturefund.org/wffmaster/Reading/Germany/mussolini.htm Indeed, it sounds like the author was merely expanding on footnote 11 of this masterpiece of modernism.
But there is one minor problem in this brillant exposition of political philosophy. The author states that “Since no one knows what these “Rights” are…” One might suggest that he direct his attention to the American Bill of Rights, the English Bill of Rights and several hundred years worth of legal writings, starting with, say, Algernon Sidney.