Justice Kennedy started the fireworks. As the deciding vote in the landmark Supreme Court decision which extended habeas corpus rights to detainees held at Guantánamo he not only made legal history — he set off one of the heated debates of the presidential campaign. John McCain argued that Barack Obama is weak on terror. Obama argued that McCain is George Bush revisited.
If you redacted the names you might think it was 2004 and the candidates were George W. Bush and John Kerry. Back then Kerry accused his opponent of frittering away America’s reputation and disregarding the sensibilities of the international community. Bush derided Kerry for being soft on terror and holding America hostage to the “international test.”
That argument is being replayed in the wake of the Supreme Court’s controversial decision. McCain and his surrogates accuse Obama of being naïve and reverting to a “criminal justice” approach to fighting, just as Bush claimed Kerry did. Obama applauded the Supreme Court’s decision and could find no “credible scenario” under which the decision would put Americans at risk. McCain, he said, was playing the “politics of fear.” In short, we were back to the same old dichotomy: foolish liberal vs. fear-mongering conservative.
The question is whether times have changed and whether McCain can be as successful as Bush was in playing the national security card.
McCain claimed the initial advantage when Obama’s advisers let on that the Supreme Court decision would grant habeas corpus rights to Osama bin Laden. As Jake Tapper put it, “Regardless of the merits of the jurisprudence argument, Osama bin Laden’s rights are not a good political topic.” So if the argument is giving trial lawyers free rein to spring terror leaders, McCain will likely win this issue going away.
It did not help matters when Obama slipped up, suggesting that the model procedure was the Nuremberg trials, which of course were military proceedings lacking any habeas corpus or other procedural rights familiar in civilian courts.
But the danger for McCain is that he, not known for finesse, will be labeled as the rogue candidate who opposes the rule of law. It takes time and a certain amount of tedious detail to explain that McCain favored a military tribunal system over the Bush administration objections, but thinks full-blown legal proceedings in civilian courts is a bridge too far. It takes even more time to explain why a civilian proceeding may not be suited to prosecuting terror suspects.
It requires patience and daily effort to explain what McCain favored, what the Supreme Court accomplished and what potential dangers lie ahead. For Americans frankly tired of hearing about terror suspects and eager to move on to gas prices, health care and social security, it is a steep communications hurdle. It is even steeper for a candidate who has such a shaky relationship with teleprompters.
And that may be the biggest challenge McCain faces: getting Americans to believe that terrorism continues as an ongoing and immediate threat to their safety. In some sense it is a problem born of success, namely the absence of any domestic terror incident since 9/11. Occasionally we hear of a thwarted terror plot or a released Guantánamo prisoner who turned up back on the battlefield, but the immediacy, and hence the political utility, of the war on terror has diminished with the passage of time.
So if McCain is going to benefit from this debate and convince Americans that Obama is John Kerry in a more attractive package, he will not only need to do things like explain his own record and a bit of constitutional law, but convince voters that this issue matters a great deal, perhaps more than any other. For a candidate not known for great speech-making or for staying on message, that’s a lot to ask.