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Atlantic Monthly Death Spiral Watch (Marc Ambinder Edition)

Outsourced to Publius of Obsidian Wings:

Obsidian Wings: "So Called Quote Habeas Corpus Suits": Marc Ambinder has been spending a lot of time lately defending John McCain. But this post on habeas was too much. Ambinder claims that “on the question of what should be done to the Gitmo detainees, the candidates' rhetorical differences are greater than their policy differences.” That’s wrong. Really really wrong.

First, and before I get to policy differences, the larger problem is that Ambinder is ignoring the fact that political rhetoric matters. McCain has adopted the worst sort of demagoguery on the habeas case. He claimed the decision was one of the worst in history. He also referred to writs of habeas corpus — one of the oldest civil liberty protections in Anglo-American law — as “so-called, quote, Habeas Corpus suits.”

In doing so, McCain is providing support for the political movement to deny the detainees all legal rights. It doesn’t matter what he privately thinks or what he said years ago. Today, when it matters, he’s siding with the “no rights” crowd — and his actions have consequences. (And for the record, the point of protecting those rights is not to release terrorists but — say it with me people — to determine if these people are terrorists in the first place).

But that aside, Ambinder’s also off on the policy. It’s frustrating to even have to say this, but McCain and Obama have major policy differences on the Gitmo detainees.

First, Ambinder claims the McCain’s gripe is procedural rather than constitutional. That distinction, however, doesn’t make much sense. He writes:

[McCain’s] concern now... is procedural, rather than constitutional: the detainees' having access to habeas in our federal courts would create a tangled web of lawsuits, would expose intelligence secrets, and would needlessly draw out these legal proceedings.

Ugh, where to start. It’s true that there’s a difference between rights and remedies. It’s also true that habeas is a procedural remedy to vindicate a pre-existing right (e.g., due process). The problem, though, with Ambinder’s statement is that this particular procedural remedy (habeas) also happens to be a guaranteed constitutional right. Indeed, its purpose is to prevent precisely what Bush is doing. Thus, McCain’s problem with “procedure” is necessarily a constitutional problem. And the fact that constitutional rights are messy is, you know, the point. I mean, I guess the Fourth Amendment would be ok and all if didn’t make police do messy things like get warrants. It just really drags out the process needlessly.

Things get worse in the next part though:

McCain believes that it’s OK for foreign-national detainees to have habeas corpus rights, even if they are somewhat restricted...

No he doesn’t. I mean, he may say that. He may even think that. But he’s acted in a completely different way.

Rights don’t exist if you eliminate all procedures to vindicate those rights. Otherwise, the rights become only words on paper, rather than living breathing liberties that must necessarily be enforced.

In short, actions speak louder than words. And in the world of action, McCain has been a consistent opponent of habeas. In fact, he’s consistently voted to completely strip ALL habeas protections from the Gitmo detainees. For instance, he has (1) supported the DTA; (2) supported the MCA; and (3) filibustered a bill to restore the habeas rights eliminated by the prior two laws. Collectively, these votes completely eliminated habeas remedies and replaced them with kangaroo courts. Maybe Ambinder could take a stab at squaring these actions with McCain’s words and press releases.

To repeat, it’s impossible to support a right if you oppose all remedies to vindicate that right. A right without a remedy isn’t a right at all. And on that very note, Ambinder writes:

[T]he [Bush] administration favors indefinite detention and opposed the granting of any habeas corpus rights; McCain clearly took another approach.

“Clearly” different approach, eh? Again, it doesn’t matter what McCain says about indefinite detention or limited habeas. Actions are what matter. And McCain’s actions (and Bush’s and the GOP’s and several spineless Dems’) have led to indefinite detention and the complete elimination of habeas rights. Further, McCain’s Hannity-esque rant politically strengthens the more extreme anti-habeas positions and gives them credibility.

Finally, Ambinder argues the candidates simply differ on who will oversee the combatant review process. He writes:

For McCain, the military would oversee those hearings; for Obama, federal judges would.

That's extremely misleading. First, I don’t like the framing here — it’s essentially saying “military versus liberal meddling judges.” In any event, it’s also factually incorrect. The DTA and the MCA incorporate a federal court (the DC Circuit) into the review process. To be sure, the laws provide for only a narrow and excessively limited review of a kangeroo court process, but those meddlin’ federal courts are in fact involved.

But even assuming that no federal court is involved, there’s a larger problem with Ambinder’s characterization — it’s not as simple as “military” versus “federal judges”. A better way to describe the choice is (1) “an extremely limited review process run by the military with no habeas protections” versus (2) “an extremely limited review process run by the military with habeas protections to ensure there is actually evidence for the detention.”

It’s not like the federal courts are going to take over everything, as Ambinder implies. Further, once the government faces the prospect of habeas, it will (ironically enough) lessen the need for habeas litigation. That’s because the government will respond by actually producing evidence and, even better, making the initial trials and review processes less kangaroo-ish.

In any event, these are major differences about vitally important rights. It’s not just angry rhetoric masking a broad consensus about some trifling procedural point.

Why oh why can't we have a better press corps?