The good news

I've haven't been a big fan of McCain since his atrocious anti-First Amendment campaign finance law.  But the good news about his win in Florida, and the almost certainty of his nomination for Republican candidate, is that the Republican candidate is decidedly anti-torture. 

Yikes, I wish that had never even been a question. 

Otherwise, open thread.

--Sebastian

Comments

[Bruce Baugh]

I'm at a loss to know what in McCain's voting record provides any grounds for confidence in this regard. It seems like believing he's anti-torture requires believing also that he's a spineless wimp in Congress but that his bullheadedness would reassert itself as President and be a force for good on this issue. "Trust me, I'll change" is seldom anything I want to count on, though.

[Jesurgislac]

"Decidedly anti-torture" seems a bit much, too. More so than the other Republican candidates, perhaps.

Opposes habeus corpus, though.

Opposing torture - which McCain has certainly not done very heartily, as Bruce notes - is just something that one would hope any decent human being would do, given the opportunity to do it. That none of the other Republican candidates will oppose torture even as meekly as McCain kinda did, sort of, not to get the President too mad or anything but.... suggests that he's got a decent human being in him somewhere, hiding under the Republican Senator who wants to be President and knows that opposing Bush successfully is not the way to get the party nomination.

Habeas corpus, though, is a basic part of the rule of law. It's been a basic part of the rule of law long long before the US Constitution was written: it's a basic principle of a free country that if you've put someone in jail they damned well have a right to a hearing from a judge about why they've been put in jail. This links into opposing torture, since the last thing torturers will want are their victims standing up in court with the right to say "When I confessed to that, I was being tortured."

To effectively oppose torture, you need habeas corpus. I'm quite sure McCain knows this. McCain voted against permitting prisoners held by the US in Guantanamo Bay and other oubliettes from being able to appear in a properly constituted court and hear the evidence against them.

McCain might be better than the other Republican candidates. But for justice to be restored to the US, you still need one of the Democratic candidates to win.

[Xeynon]

Jesurgislac - POW's, saboteurs, etc. have never been extended the protection of habeas corpus. It's a case-by-case basis as to whether those accused of terrorist activities are enemy combatants or accused criminals, but the vast majority fall under the former heading under international law.

This is indeed good news, and I suspect a President McCain would have the leverage to ram a much needed anti-torture plank into the Republican platform in a way Senator McCain simply does not.

That's not the only good news from my point of view, though. Nominating McCain will start to drag the Republicans away from the nativist bating on immigration and the anti-science dogmatism on global warming as well.

[Jesurgislac]

Xeynon: POW's, saboteurs, etc. have never been extended the protection of habeas corpus.

And if the prisoners held in Guantanamo Bay had been treated as prisoners of war with their full rights under the Geneva Convention, we wouldn't be having this conversation. They haven't been treated as PoWs, so arguing that as PoWs they're not entitled to habeas corpus is an absurdity.

Calling them "saboteurs" is a red herring: the point is that thanks to how they've been held, we have no idea if they're guilty of anything.

This is a conversation you've come in on after years - suggest you google "Guantanamo Bay" "Obsidian Wings" and read some past threads on this topic.

[Jesurgislac]

It's a case-by-case basis as to whether those accused of terrorist activities are enemy combatants or accused criminals

or kidnap victims. We know that a good many people who were kidnapped by locals ended up in Guantanamo Bay because the US forces in Afghanistan were paying good money for every warm body brought in accused of terrorism or of fighting foreign invaders. The problem is that there was no effort to find out which - to sort those innocent even of fighting the US when it invaded , from those who did fight the US and are legally PoWs, from those who may have committed crimes and deserve a fair trial. (Again; this aspect has been discussed to death.)

[Bruce Baugh]

As Jes says, the fundamental problem with regard to handling the prisoners in Guantanamo and other sites is that we don't know what the appropriate treatment for them is, because their status has never been ascertained. There are reasons the Geneva Conventions call for prompt inquiries, and one them is to avoid messes just like this. Most of these people have never had any hearing at all, and the hearings there have been have pretty much all been pathetically bad - see the reporting from Katherine and CharleyCarp, among others.

And yes, McCain has supported this approach, or at least never done anything to stop it.

[Xeynon]

Jes, I'm familiar with the arguments pro- and con. I agree that the Bush administration has stretched the definition of "PoW status", in some cases unconscionably so. Innocent people have been imprisoned at Guantanamo, and that is inexcusable. In no way do I mean to defend the Bush administration on this score.

But it is far more inexcusable that innocent people have been tortured. The fact that McCain has steadfastly opposed torture leads me to believe his administration would halt that, which would be a significant improvement. I also hope (though I will admit this hope has yet to be proven) that a McCain administration would execute the war significantly more competently, so that we wouldn't get so many innocent people being imprisoned in the first place. That said, I'm prepared to accept the fact that no matter how competent our execution of the war effort, in our efforts to fight the Taliban, al Qaeda, etc. some innocent people are going to be wrongly sucked into the system. Hopefully they'll be cleared and freed ASAP. That's a problem that we need to deal with, I agree - but it's a separate issue.

I don't think it follows that one must grant every accused suspect habeas corpus rights in order to effectively oppose torturing them. A clear, unambiguous directive from the Commander-in-Chief that the rules laid down by the Geneva Conventions are to be followed with respect to all prisoners, and that violations of such will be punished, is all that's needed in my view. Bush has not given such a directive - he's talked out of both sides of his mouth about it, engaged in Orwellian subterfuge, or outright lied. McCain would. That's far more than just a slight gesture in the right direction.

[Xeynon]

On a side note, the conservative commentariat is going nuts. Perhaps a lot of conservatives really will sit out rather than vote for McCain - but not, I suspect, if that will lead to President Hillary Clinton.

[novakant]

It's a case-by-case basis as to whether those accused of terrorist activities are enemy combatants or accused criminals, but the vast majority fall under the former heading under international law.

You are aware that you are on really shaky ground here as far as international law is concerned, no?

[Xeynon]

Novakant - sorry, badly worded sentence.

I was referring to those captured in combat operations against Al Qaeda, etc. in Afghanistan - NOT the Jose Padillas of the world.

[Gary Farber]

I'll offer this slogan for use by the McCain campaign, which carries my endorsement (of its truth, not of my vote or support): "McCain: Less Crazy Than The Other Republicans."

Alas for the soft bigotry of low expectations.

[Gary Farber]

"'Decidedly anti-torture' seems a bit much, too. More so than the other Republican candidates, perhaps."

Unclear. Huckabee has given lip service, and as a governor, could give little more, though there are always ways of making an even more public committment.

Romney, on the other hand, is Mr. Double Guantanamo.

And McCain is being endorsed by Giuliani, not exactly a torture opponent. Might Rudy be the Veep nominee? That seems to remain a serious concern, although perhaps Huckabee is at least as, if not more, likely. In which case our worries go on a different direction.

But we won't know until we know.

[Bruce Baugh]

I do repeat my earlier question: how is McCain's opposition to torture demonstrated in legislation? At what point has he actually pushed a vote in opposition to Bush's preferences, and how often has he done that versus how often he's talked opposition and surrendered come vote time?

[Gary Farber]

I'd like to re-emphasize Bruce Baugh's point that the distinction between rhetoric and action is huge.

Rhetoric is easy; it's just words in a speech.

The record of our Republic includes the record of politicians talking like mad about something in a campaign, and, for better or worse, not doing much about it in reality when elected.

Rhetoric alone simply can never be trusted from any candidate. It's a basic, basic, basic, point.

[Jesurgislac]

Xeynon: The fact that McCain has steadfastly opposed torture leads me to believe his administration would halt that, which would be a significant improvement.

Well, yes: it would return the US from its current status as "Nation that endorses torture under law" to a slightly higher status "Nation that endorses extrajudicial imprisonment". This is Not As Bad As, but I think the two are inextricably linked: if prisoners are being held without the right of a hearing, how is anyone to know that the US has stopped torturing prisoners? Just because a Republican administration says so?

[cleek]

Read my lips: no more torture

[Xeynon]

if prisoners are being held without the right of a hearing, how is anyone to know that the US has stopped torturing prisoners? Just because a Republican administration says so?

You've got a point. As a libertarian, I'm extremely unsettled by the concept of extrajudicial imprisonment. That said, the question of how to deal with Al Qaeda operatives is extremely thorny. Clearly they're not criminals in the normal sense, since they're a paramilitary operation fighting what is essentially a war. But they're not POW's either, because it's not like they can be released, exchanged, or expected to return to "civilian life". In all seriousness, what would you suggest doing with them, given that they're not American citizens and aren't on U.S. soil, and hence aren't subject to U.S. law, but and are captured in essentially lawless regions where there's no judicial apparatus or even state authority to hand them over to international courts?

Rhetoric is easy; it's just words in a speech.

Gary, I think McCain did what he could in the Senate given the leverage he had. Yeah, he was forced into a watered down compromise, which is unfortunate. But even making an issue of torture at all as a Presidential candidate in today's GOP shows a fair amount of political courage, since it didn't exactly endear him to the Republican base. If he didn't actually believe that torture was wrong, why say it at all? Why not just pull a Romney and offer some meaningless red-meat pander like promising to "double Gitmo"?

[novakant]

Xeynon, this might be of interest.

[Jesurgislac]

Xeynon: In all seriousness, what would you suggest doing with them, given that they're not American citizens and aren't on U.S. soil, and hence aren't subject to U.S. law, but and are captured in essentially lawless regions where there's no judicial apparatus or even state authority to hand them over to international courts?

In all seriousness: where there is evidence sufficient to justify bringing them to trial, bring them to trial and let a criminal court determine guilt/innocence and sentencing. Where there is insufficient evidence to justify bringing an extra-judicial prisoner to trial, then release the prisoner in a country of the prisoner's choice (obviously, that country has to be willing to receive them: by default, that country may have to be the United States, if no other country is willing to accept the prisoner and the prisoner is willing to go there): where there is sufficient evidence to demonstrate that there was no good reason for detaining the prisoner in the first place, the prisoner must receive financial compensation to be determined in whatever is the usual way when compensating someone for unjust imprisonment.

None of this would be necessary if the prisoners in Guantanamo Bay and other oubliettes had been treated as international law requires in the first place, but as it is, the Bush administration has got the US into a thorough mess with regard to these prisoners, and I don't see any other way that the next administration can clean it up.

[Jesurgislac]

Xey: given that they're not American citizens and aren't on U.S. soil

Arguable. But I suppose if the US has a rigid objection to trying them according to American law since that might mean acknowledging that a US naval base captured from Cuba is de facto US soil, then they can be tried according to Cuban law in a Cuban court, and sentenced by Cuban judges. I wouldn't myself recommend this procedure, since it gives the US an air of desperation and gives Cuba a lovely opportunity to humiliate the US, but the prisoners are entitled either to the protection of US law or the protection of Cuban law. One or the other.

[cleek]

in other news: Edwards is out of the race.

[freelunch]

Jesurgislac -

Now, now, world famous legal scholar George W Bush has said that we can do whatever we want with those people. None of them deserve any legal procedures, so stop wasting your time. The constitution and international law are just pieces of paper used for trash-buckets target practice in the Oval Office.

[liberal japonicus]

I'm sure that the lawyers on the list can go into a lot more detail, but the notion of terra nullius is what you are trying to get at, I think, Xeynon. This opens up a big can of worms (was Afghanistan terra nullius? If so, how was that determined? Was it simply the fact that it was governed by the Taliban automatically made any person taken prisoner there a stateless person and therefore ineligible for the rights accorded by the Geneva convention? etc etc)

Katherine and I got into a bit of a set-to a year or two ago about extraordinary rendition, with Katherine denouncing its use by the Clinton administration and I suggesting that there was no real alternative. Perhaps that was the reflex of liberal interventionism, perhaps I was looking at it historically, so I was looking at as a 'sh*t happens' sort of thing. However, setting aside how we should view ER in particular and the notion of capturing non US nationals outside of the United States and either turning them over to another government or holding them somewhere outside of the US before 9-11, I would argue that after 9-11, the US in particular and the West in general was placed in a position where we needed to be even more transparent to undercut accusations of bad intentions. We wilfully chose not to do that, and I think it has and will continue to bite us in the ass. This means resorting to notions like 'essentially lawless' doesn't really cut it as defending our actions, at least from where I see it.

I firmly believe that a person's greatest strength is often their greatest weakness and vice versa and I think that is true of nations as well. If we think of openness as that quality, then we have a choice to either reject it on the grounds that it leaves us too vulnerable, or embrace it more completely. Given the first part of my handle, I'd argue for the latter, but that also means that we have to be like Caesar's wife. Of course, this was the reason why Caesar divorced his wife, so maybe it is not the best analogy, but it's what I'll go with for the moment.

[KCinDC]

Gary, I think McCain did what he could in the Senate given the leverage he had.

I think you underestimate the leverage McCain had as a torture survivor loved by the media in a closely divided Senate. He could have used that leverage to oppose the president. Instead he used it to undermine the opposition to torture by taking the lead in speaking out against the bill and then caving when it came time to vote so as not to offend Bush. The "straight talk" was all just spectering.

[KCinDC]

And I'm not happy to see Senator "Bomb, Bomb, Bomb, Bomb, Bomb Iran" on track to win the Republican nomination, though a friend of mine from Massachusetts has been trying to convince me that Romney would actually be worse than Giuliani.

[Bernard Yomtov]

a friend of mine from Massachusetts has been trying to convince me that Romney would actually be worse than Giuliani.

I don't know about that, but being from MA, I can say that I shudder at the notion of a President Romney.

The man is not popular here. I would bet that, should he be nominated, he will set a record for poorest showing by a major Presidential candidate in his home state.

[liberal japonicus]

I don't know how real the talk of Kerry approaching McCain to be part of a unity ticket was, but I have always factored that in as part of my disappointment with McCain. We've had a lot of recent talk about how politicians are inherently looking out for themselves rather than for any notion of the public good, but that moment, when we could have avoided 4 more years of Bush, seems to have been so pregnant with possibility that I view it as a strike against the man.

Of course, someone will probably explain to me that the story is an urban myth along the lines of spider eggs in the Bubbleyum and point to something like this, but the imaginary narrative in my head of McCain accepting the loss of his other points to make a statement about bedrock principles of the US is so enticing that I hope you won't mind if I hold on to it for a bit longer.

[von]

That's not the only good news from my point of view, though. Nominating McCain will start to drag the Republicans away from the nativist bating on immigration and the anti-science dogmatism on global warming as well.

These, among other reasons, are why I support McCain. Moreover, although it's fashionable to blame McCain for compromises in the torture bill, keep in mind that this particular complaint must also be laid at the feet of the entire Democratic leadership, who, like McCain, agreed to it. Clean your own house first, please.

In any event, it is fairly apparent to the close observer that McCain and Huckabee have some sort of de facto working relationship during this campaign: McCain's wins would not be possible had Huckabee not split the conservative/evangelical vote. Each also fills in the gaps in the other's weakness. I predict a McCain-Huckabee ticket. I also predict that McCain's win will lead many Democrats to consider "experience" a more critical factor nominating process, leading the party to nominate Clinton over Obama. Such would be beyond idiotic, but the record here is not particularly good (e.g., Kerry).

In any event, I'm hoping that y'all nominate Clinton, because it will make it very easy for me to cast a vote for McCain.

[cleek]

keep in mind that this particular complaint must also be laid at the feet of the entire Democratic leadership, who, like McCain, agreed to it. Clean your own house first, please.

lefty bloggers f'n loathe the way the Dem leadership has handled this (and many other) issues. clearly, this house cleaning you demand is not in our power.

[Jesurgislac]

Von: Moreover, although it's fashionable to blame McCain for compromises in the torture bill, keep in mind that this particular complaint must also be laid at the feet of the entire Democratic leadership, who, like McCain, agreed to it. Clean your own house first, please.

You know, this would have been almost a fair jab, if not for the last six words: or rather, if not for the last word before the final comma.

Von, the entire Republican leadership proposed the bill, supported the bill, stoked their supporters, and fed nasty rumors to media and blogs about how if you opposed the bill you were "soft on terrorism". And after that, voting on the bill was pretty much party-line split: Republicans for, Democrats against.

It takes some chutzpah after that to instruct Democrats that they have to clean up first.

[KCinDC]

Of course we're tired of the Democratic leadership caving (and the Republicans in the Senate blocking everything), but in this particular case McCain made it practically impossible for them to do anything else. Once the "principled", "independent" Republican who was himself a torture survivor said the bill was okay, then what chance would the Democrats have had to turn that perception around?

[Bernard Yomtov]

I predict a McCain-Huckabee ticket.

I think that would be a terrible move by McCain. Huckabee's value in the general election is likely to be negative.

[cleek]

McCain-Lieberman 08!

[Gary Farber]

"McCain-Lieberman 08!"

Literally over five thousand stories say no, so the value of making up a big lie seems odd.

[farmgirl]

Maybe cleek was making a joke. I read it that way.

[Jeff]

It's a case-by-case basis as to whether those accused of terrorist activities are enemy combatants or accused criminals, but the vast majority fall under the former heading under international law.

Considering that "enemy combatant" is a designation from Bush to get around the Geneva Conventions, I doubt that "international law" covers them at all. In fact, I believe that the Conventions state that POWs, et al are granted habeus corpus.

That said, the question of how to deal with Al Qaeda operatives is extremely thorny.

Bull. Most of what's been said about them (that we can't let them see their accuser, that they don't wear uniforms, whatever) could also be said of members of the Mafia. Yet, somehow, by some great miracle, we're able to try, convict and inprison them. Glory be!

[Gary Farber]

"Maybe cleek was making a joke. I read it that way."

You're certainly right.

I have problems recognizing that sort of thing at times, clearly.

Apologies.

[Brett Bellmore]

I think it's a bit early, to say the least, to be anointing McCain the Republican nominee.

Modest lead in delegates with most delegates still to be chosen.

Less campaign cash on hand than Paul, a lot less than Romney.

Has yet to top 37% of the vote, even with Democrats crossing over to vote in Republican primaries.

He might pull of a victory on the basis of a string of plurality wins with a divided field, but that's no sure thing.

[John Thullen]

"The Good News"

What's the bad news?

[von]

Cleek and KCinDC, I don't mean to accuse lefty bloggers of ignoring the fact that the D-Leadership agreed to the same compromise as McCain did. What I do ask is that we not act as if compromising on this particular bill is some unique defect in McCain's otherwise exemplary position on torture. It's also a defect in Hillary's position and ('tho I'm less sure of this) Obama's position as well.

Jes, where in my post do I say that the Republicans are not in need of house-cleaning in this area? My sole request was that the same standard apply to both sides.

"I think that would be a terrible move by McCain. Huckabee's value in the general election is likely to be negative."

Among independents and RINOs (e.g., me), that's correct. But Rs need to turn out their base, which leaves a pretty short list of possible contenders for VP on a McCain-headed ticket. (Brownback, who has endorsed McCain, is another -- and perhaps a more credible choice than Huckabee.)

Agreed, btw, that it's too early to annoint McCain the winner. But we're getting close.

[Katherine]

"What I do ask is that we not act as if compromising on this particular bill is some unique defect in McCain's otherwise exemplary position on torture. It's also a defect in Hillary's position and ('tho I'm less sure of this) Obama's position as well."

I don't have a roll call handy but I'm about certain that Obama & Clinton opposed the bill & supported amendments restoring habeas, while McCain voted for it. The Democratic leadership did make a cowardly decision to hide behind McCain, Graham & Warner & then when those three--predictably--backed a bad bill, they didn't filibuster & it got some democratic votes. But not the candidates.

[Katherine]

Military commissions act roll call. McCain voted yes. Clinton & Obama voted no. Habeas amendment roll call. McCain voted no, Clinton & Obama voted yes. As far as I can tell he opposed every single of the Democratic amendments trying to mitigate things.

The MCA isn't the first vote like this. As far as voting on torture issues, Clinton & Obama are very clearly better.

I do realize that McCain has taken some risk to publicly denounce it & sponsor some bills, but they have always been limited--and, belonging to a party where it's politically dangerous to oppose torture at allisn't a huge plus in my eyes.

[dn1021]

Here's what mystifies me about torture. Those who make the most fuss about being Christian in this campaign, the most pro-life, are also the most likely to favor the use of torture. Apparently since I quit going to church, there has been some kind of amendment to the Golden Rule regarding terrorists, or those who might be terrorists, or those who had the misfortune to be mistaken for a terrorist.

[russell]

keep in mind that this particular complaint must also be laid at the feet of the entire Democratic leadership, who, like McCain, agreed to it. Clean your own house first, please.

Katherine and others beat me to the punch on the numbers.

Your comment is kind of laughable. As in, not to be taken seriously.

Thanks -

[Jesurgislac]

Von: where in my post do I say that the Republicans are not in need of house-cleaning in this area?

As I pointed out, very clearly I thought, it was a fair jab to say that the Democrats need to clean house: it takes chutzpah for a Republican to argue that the Democrats need to clean house first. If the same standards are applied to both sides, the Republicans are far worse.

[Gary Farber]

von: "Among independents and RINOs (e.g., me), that's correct. But Rs need to turn out their base, which leaves a pretty short list of possible contenders for VP on a McCain-headed ticket. (Brownback, who has endorsed McCain, is another -- and perhaps a more credible choice than Huckabee.)"

There are, as you know, a number of somewhat discrete interest groups that make up the Republican "base," von.

The specific subgroup of the Republican "base," as opposed to, say, economic conservatives, or foreign policy hawks, or anti-immigration enthusiasts, or free trade advocates, or big corporate lobbyists, or specific industry advocates, or any of a large number of other specifiable groups in the Republican coalition of recent decades, you seem to be referring to, when pointing to Huckabee and Sam Brownback, the specific subgroup of evangelical Christians.

I'd just like to be clear if you agree that that's whom you're talking about, and whether it might or might not be preferable to be clearer in your language as regards that, or not, and if not, why.

Thanks.

I'd also be quite curious to read any words by you as to how you feel about that part of the coaltion, and being, well, part of the same coalition, and I'd be really fascinated if you felt like going on to detail your personal feelings about all the subsets of the Republican coalition of recent decades.

Us outsiders don't have clear clues as to what the thinking of someone such as yourself is as regards those compromises, and the like, and I bet I'm not the only person really curious to read an account of an articulate and intelligent person such as yourself as to how you view it.

[Sebastian]

Since this is an open thread, I'm going to go off on a tangent that this talk of torture votes vaguely reminded of.

Why do we still have voice votes in Congress?

It used to be a pain to accurately tally things, but nowadays your little computer button could do it instantly. Is there an important democratic principle to not being able to tell who voted for what so long as there is an apparent majority? Wouldn't it be better for responsibility to be able to see the actual votes every time? (I'm guessing that politicians see that lack of accountability as a feature rather than a bug, but I'm wondering if there is some legitimate reason behind it).

[Bruce Baugh]

Good question, Sebastian. I'd guess that it's simple accountability dodging, but if there's something more I'd be interested in knowing it, too.

[Jesurgislac]

Isn't there a formal tally? In the House of Commons they still vote by filing into the Yes and No lobbies, and then headcounts being done by Whips from both sides*, but there's always a formal tally as well.

Are there really still votes without a formal tally in Congress? Shows what I know. But I'm truly astonished.

*Which may eventually get changed - MPs have apparently looked at how the members of the Scottish and Welsh parliament/assembly get to vote, just by pushing a button, and are green with envy. Of course it would mean rebuilding the Chamber so everyone can have their own designated seat, but...

[Jesurgislac]

Sorry, I also meant to say - the principle of the secret ballot is a good one, but I really don't see how it could apply to representatives in a democracy voting on public business. Union members used to decide things with a voice vote so that their employers couldn't hold how they voted against them, but it was decided quite a few years ago that this was intrinsically subject to abuse - the person proposing the decision for a vote was usually also the person deciding how the vote had gone - and now it's legally required that certain decisions must be made by ballot.

[trilobite]

xenyon -- you ask what we should do with Al Qaeda operatives. Wrong question. The right question as to habeas corpus is, what should we do with people who are accused of being Al Qaeda operatives.

It's not all that hard to come up with a policy as to actual, proven Al Qaeda operatives. No policy is going to be perfect or fit all cases, but, off the top of my head:
we could hold them for life (without torture) or until their country has a government we trust to deal with them.
We could stop taking prisoners because there's nowhere to put them -- it's arguably better to shoot someone than to hold him incommunicado for life.
We could take a lot fewer prisoners and after say, ten years let the ones we have go or give them to their home government even if we don't really trust it.
We could make them publicly acknowledge their surrender in the middle of the village square in front of their wife, kids, and neighbors, including an oath, made to a fellow Moslem, to never take up arms against us again -- that should at least impair their effectiveness.
Heck, we could go the old Roman and cut off their right hands so they can't wield arms.
I know, the UN might object. Fnck 'em.

But all of this comes AFTER we figure out whether we have any problem with them at all. Because there is a very simple policy for dealing with prisoners who turn out not to be the enemy: you let them go. Preferably with an apology and maybe some cash. And you do this as soon as possible, so you don't make more enemies, and also because it's the right thing to do.

A few years back, I would not have thought any of this was remotely controversial. But it turns out, we have an administration and a Congress -- including your esteemed Senator McCain -- who are so stupid and evil that they are not even trying to find out who they are holding and torturing.

That's the only reason habeas corpus comes up at all. If we were dealing with these prisoners in a halfway sane fashion, nobody would care whether they had a habeas right, because they would already have all the benefits they could hope for: some kind of reasonably fair fact-finding procedure to determine their status, the innocent released, and the guilty held in a civilized fashion. Habeas does not require a full civil or criminal trial, by the way, just some reasonably fair proceeding.

Unfortunately, they do need habeas rights, because it turns out that neither the President nor Congress can be trusted to do anything decent or rational with them. Not when the President and Congress are Republican, at least.