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McCain's Guantanamo Opportunity--Skeel

As I was reading the Supreme Court’s new Guantanamo Bay decision this weekend, I emailed my colleague Stephanos Bibas, a fine scholar and Supreme Court watcher, to see what he thought. After explaining why he thinks “the dissenters have a reasonably strong case” given among other things the historical limitations on the writ of habeas corpus, he said:

“the majority seems influenced by the long and open-ended nature of this war on terror. I can't help but think that the Executive's bungling of Guantanamo, with the Yoo memo and the refusal to budge an inch in conferring due process protections, has swayed at least Justice Kennedy to distrust unreviewable executive discretion here. It seems to confirm Jack Goldsmith's thesis in The Terror Presidency: by constantly pushing its power to the utmost and refusing to show any respect to good-faith concerns, the Bush II administration has provoked confrontation after confrontation with the Supreme Court and lost, ultimately weakening executive authority.”

If Stephanos is correct– and I personally think he is– the Supreme Court’s ruling that the enemy combatants at Guantanamo are entitled to full habeas corpus rights seems to me both understandable and wrong. It may also be a significant opportunity for John McCain.

An unspoken assumption of many of the opinion’s enthusiasts seems to be that there are no real distinctions among American citizens, people under American jurisdiction and those entirely outside America (including in this case, enemy combatants). I suspect a large majority of Americans intuitively reject this assumption. McCain’s opportunity, it seems to me, is to tap into this intuition by continuing to criticize Boumediene v. Bush, while at the same time promising a very different executive branch than the Bush administration. Not least of the benefits of an administration that did not gratuitously confront the other branches of government, he might argue, is that we would see fewer dubious Supreme Court decisions like this one in the next eight years.

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