Will on Gitmo

George Will on John McCain's Condemnation of Boumediene v. Bush which held that Gitmo Detainees retain Habeas Corpus rights to challenge their detentions in Federal Court:

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

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Finally, some conservative support for an opinion that restricts the government's second most powerful weapon, incarceration. I disagree with Will's contention that it's the worst, as would a lot of dead people or torture victims if they could speak up, but at least he's on the right track:

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's 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?

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.

In Marbury v. Madison (1803), which launched and validated judicial supervision of America's democratic government, Chief Justice John Marshall asked: "To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?" Those are pertinent questions for McCain, who aspires to take the presidential oath to defend the Constitution.

They're also good questions for Barack Obama obviously. But Will gets credit for being one of the few mainstream media writers who frame this issue along the right lines.

I've ruined a lot of family reunions arguing with my so-called conservative relatives that they were betraying their principles by supporting a President who believed in extreme secrecy and disbelieved in the Constitution he swore to uphold.

It's nice to see someone from the right voicing their concern that while it's our government's role to protect us from terrorists, it's our Constitution's role to protect us from our government.