Both men know that McCain's last best hope of beating Barack Obama in the November election is to rattle the nation's teeth with vivid evocations of national emergency and stampede the fearful voters into putting a "war hero" into the Oval Office.
Both men also know that almost seven years after the World Trade Center towers went down, the possibility of a terrorist attack is not the prime source of disquiet for most Americans, who can barely afford to drive to work or pay the mortgages on their homes.
The signs that the "war on terror" is losing its political edge are manifold. In the months after the 9/11 attacks, the Bush administration faced no serious opposition in trampling the Constitution underfoot in the name of national security. The Patriot Act shot through Congress with just one senatorial "No" vote, from Russ Feingold of Wisconsin. The symbol of U.S. "resolve" around the world became the prison at Guantanamo, filled to this day with men against whom no formal charges had been laid, subjected to appalling tortures and denied the right to legal counsel.
Last month, the courts delivered two resounding rebuffs to the White House's efforts to say that prisoners hauled to Guantanamo had no rights under U.S.
law. On June 12, in the case of Boumediene vs. Bush, the Supreme Court ruled 5-4 that Lakhdar Boumediene, a Bosnian citizen seized in October 2001, was entitled to habeas corpus Ñ i.e., a right under the Constitution to have an independent court of law review the legality of a his detention. Justice Anthony Kennedy stated ringingly in his draft of the majority opinion, "The laws and Constitution are designed to survive, and remain in force, in extraordinary times."
The right erupted in fury, denouncing "the Boumediene Five." The Wall Street Journal bellowed in an editorial that the majority justices had signed the death warrants of American soldiers fighting terror overseas. At a town hall meeting in Pemberton, N.J., McCain called it "one of the worst decisions in the history of this country." For his part, Obama reiterated his "firm belief that we can track terrorists, we can crack down on threats against the United States, but we can do so within the constraints of our Constitution."
Then, this last Monday, a three-judge federal court in Washington followed swiftly in the tracks on the June 12 ruling, declaring that Hozaifa Parhat, a 33-year-old Uighur Muslim from the oppressed Xinjiang province of China, seized in Turkmenistan in 2001, had the right to seek release immediately through a writ of habeas corpus. Thus, in the space of less than a fortnight, the courts kicked away what Bush and his lawyers have insisted for seven years to be the vital right to hold terrorists indefinitely, without charges or rights of any sort.
Judges mostly rule in tune with the temper of the times, and the decisions this month are no exception. What McCain's man, Charles Black, was correctly saying is that if a new terrorist attack had rocked America on June 1 of this year, the judges might well have held their hands.
Almost every presidential election sees allegations of an imminent "October surprise." There's scant doubt what sort of surprise McCain and the Republicans, aghast at Obama's surge in the polls, are yearning for.
© Creators Syndicate
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