Many bloggers have already assailed this hyperbolic statement by putting in their own picks for the Worst Decision Ever (Plessy v. Fergusen? Dred Scott? I myself think Bush v. Gore was decided very badly.) Because I disagree with Senator McCain, and agree with the Constitutional scholar in this year's Presidential race, I thought I might like to contribute some helpful background regarding why this decision should not have even been as close as 5-4. (In my really humble opinion. Really.)
"...better that ten guilty persons escape than that one innocent suffer"
--Blackstone's formulation, also echoed by Benjamin Franklin and others.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
--The Declaration of Independence
If you were to look back on the founding of our nation and the system of government, and most notably the justice system we have inherited, you would be fascinated at the degree to which our laws are predicated upon what governments--not men--are not permitted to do. Governments should not interfere with those rights considered "inalienable"--which is to say, innate, not granted by government, and therefore not appropriate for government to abuse. In detaining any person, that person is deprived of their Liberty, and in denying due process, they are denied the means by which they can obtain that Liberty. While it is not inappropriate for a government to arrest and hold persons who have done wrong--there is a presumption of innocence. Guilt must be proven.
The situation of the detainees at Guantanamo is complicated. Most are described by the government presently as "enemy combatants"--but not all of them were picked up on a battlefield or in a state of combat. If they were--not being lawful agents of an enemy state, they would be "unlawful combatants"--and under the Geneva Conventions they are generally considered to fall under the jurisdiction of the domestic law of the detaining state (that would be our civilian court system--wouldn't it? Which means habeas corpus pertains. I could be wrong, it certainly felt too easy.) And if they were just picked up for larks and giggles (which did happen, rather a bit) or because they were fingered by a person who didn't care for the cut of their jib and can in no way be charged with anything, why--they should be let go.
But because this messy habit of calling them "enemy combatants" has come about, people have begun confusing them for POW's. They aren't, necessarily. They aren't recognized military combatants. This sort of mess is an unfortunate side effect of the War on Terror, since its targets are international terrorist networks and not states, but oh well. You go to war with the enemy you have, not that you'd like to have...(or you treat the criminal activity appropriately as criminal to begin with.) But in any case, you can't detain people indefinitely. Some of these folks have been in lock-down for six years. They haven't been charged and they aren't getting a day in court anytime soon.
The job of the Supreme Court is to determine one thing--is this a Constitutional situation? They don't make laws. Congress does. John McCain knows that. He's been in Congress a long time and he'd be a silly fellow if he didn't. They just strike down ones that suck. The Military Commissions Act had a flaw in it regarding the rights of the detainees. Whether people are hurt or killed or whatever is not the SCOTUS' issue--Constitutionality is. If McCain is especially concerned--why, he goes back to the drawing board and finds a way to get legislation that is legally enforceable in. What we can't morally do is detain them all, the "worst of the worst" killers, as Bush has termed them, with the innocents, indefinitely, without sorting them out, for no other reason than convenience. McCain's complaint is mainly:
We are now going to have the courts flooded with so-called, quote, Habeas Corpus suits against the government, whether it be about the diet, whether it be about the reading material. And we are going to be bollixed up in a way that is terribly unfortunate, because we need to go ahead and adjudicate these cases.
Well, toughies. This situation came about because the Executive and Legislative branches fumbled it. Oh, and p.s., we're talking about largely the actual reasons for their detention, not that they aren't *happy*. If they don't like mac'n'cheese, or think that, say, stress positions to elicit humint that is five years old is a bummer, that would be another case, wouldn't it?
Bottom line, these are human beings, which have rights as such regardless of citizenship. It's just sort of, I dunno, American, to recognize that. Equating a recognition of said rights with endangering the national security is problematic. We're a nation of laws. I would be especially concerned if I thought damage was being done to those laws, or human rights, or the freedoms we consider the foundation of our system. It's easy to forget, sometimes, that freedom means taking risks. No wonder some people aren't always proud of America. We forget another smart thing Ben Franklin said, "Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety."
Five Justices remembered. Good for them. Good for us.