On Gitmo, How Far Apart Are McCain And Obama? (Updated)

There are clear policy differences between John McCain and Barack Obama on national security, and beyond that, their approaches differ conceptually -- Obama is inclined to see terrorism as a sequence of criminal acts that can be combated with a broad range of policies, including offensive military engagement overseas. McCain sees it as a larger, coordinated, military-esque assault on the US that requires, first, a military response. But on the question of what should be done to the Gitmo detainees, the candidates' rhetorical differences are greater than their policy differences. In the wake of last week's SCOTUS ruling, McCain seems to believe that the existing set of laws was more than sufficient to protect the rights of detainees. His concern now, based on what he told Dana Bash yesterday, 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.

DANA BASH: you said it, he was very strong in saying that he thought that decision was one of the worst decisions that the supreme court has ever made in its history. again, a pretty strong statement there. obviously the question isn't so much about the past for john mccain and barack obama, it's what about the future? this is something regardless of how you feel about the substance of the decision, that it has created a legal mess. when i asked john mccain is about that. the reality is, as president, he would have to deal with it. regardless of what you think about the decision, the reality is now there's a legal mess and it's going to be in the lap of the next president. if you are president, what next? what do you do?

SEN. JOHN MCCAIN: i think maybe legislation working with the congress, which would define more narrowly the habeas corpus rights of people who we have detained. it's very broad right now. at least try to provide some definition of that so we're not ending up in endless lawsuits. already the detainees have brought suit on diet, on reading material, on all kinds of other things that are certainly not central to what we have detained them for. so i would hope that we could at least do that.

Other than that, the differences between McCain and Obama don't seem all that great on matters of policies. McCain believes that Guantanamo should be shut and that people there should either be put on trial or released, as does Obama. McCain believes that it’s OK for foreign-national detainees to have habeas corpus rights, even if they are somewhat restricted vis a vis those of American citizens (the emphasis being on them still having rights)? There's a big difference between McCain and the administration; the administration favors indefinite detention and opposed the granting of any habeas corpus rights; McCain clearly took another approach.

Actually, the paragraph above is inartfully worded. What both McCain and Obama seem to support, although they differ in the details, is some mechanism for detainees to challenge their incarcaration status. Once Gitmo is closed and the detainees are moved to the US, McCain does not favor their being detained indefinitely without having any recourse to protest their indefinite detention. The Bush Administration opposed their being given any recourse until the Supreme Court forced them too. So by “trial,” I meant – some sort of judicial status determining process. For McCain, the military would oversee those hearings; for Obama, federal judges would. Anyway, the point is moot now.