After a visit to Guantanamo Bay, on December 12, 2003, Sen. John McCain, R-Ariz. — along with Sens. Lindsey Graham, R-SC, Maria Cantwell, D-Wash – wrote to Defense Secretary Donald Rumsfeld asking for information about the disposition of detainees being held at U.S. Naval Base Guantanamo Bay.
They wrote of their "serious concern arises over the disposition of the detainees – a considerable number of whom have been held for two years. Given this concern, we respectfully ask that you provide explicit information on two critical issues. First, we ask that you advise us as to when you will make a determination on the final disposition of the detainees’ status. Second, we request that you state specifically when you will begin the process pursuant to the Order of the Military Commissions that the President signed in November 2001, and how it will work in practice.
"Mr. Secretary," the senators wrote, "our recent visit to see the detainee situation for ourselves provided an enormously useful opportunity to understand the essential work that has been done there, which we have supported. Yet, we firmly believe it is now time to make a decision on how the United States will move forward regarding the detainees, and to take that important next step. A serious process must be established in the very near term either to formally treat and process the detainees as war criminals or to return them to their countries for appropriate judicial action."
In an interview with the New York Times, McCain said, "They may not have any rights under the Geneva Conventions as far as I’m concerned, but they have rights under various human rights declarations. And one of them is the right not to be detained indefinitely.”
This morning, on a conference call arranged by the McCain campaign, I asked former New York Mayor Rudy Giuliani how McCain’s desire — as stated in the 2003 letter — to have the detainees receive some sort of judicial process differed from what Sen. Barack Obama, D-Illinois, said to me on Monday about fighting terrorism while not ignoring civil liberties, or his further discussion of the issue yesterday where he said that his point was the need to provide detainees "some modicum of due process, (so) we can have confidence that we’ve got the right people, that we’re not wasting time on the wrong people. We can send a message to the world that we continue to abide by the standards of rule of law, and we can actually be more effective in our pursuit of terrorism."
Giuliani said that McCain’s push in 2003 was for there to be a procedure created — and there was. "Congress did create a procedure…so detainees in Guantanamo could have a hearing before a military court…and could appeal" before U.S. District court. There was nothing wrong about "grant(ing) to terrorist and accused terrorists the existing panoply of rights," he said. "But what the Supreme Court did was extend new rights to them" in its decision last week. "Sen. Obama said he’s in favor of that."
McCain, added Randy Scheunemann, the McCain campaign’s director of foreign policy and national security, "has always maintained that there needed to be adjudication and a process for adjudication….and there was a good faith effort to put a process in place" that gave adjudication rights to detainees while also protecting intelligence information. Obama voted against that process, Scheunemann said, and the Supreme Court struck down elements of that military commission law.
So it would seem Obama and McCain both think detainees should have the right to adjudication, though they disagree about the extent of those rights, a chasm seen in Obama’s support for, and McCain’s opposition to, the Supreme Court decision of last week.
So what’s this debate about? What did Obama do wrong — in Giuliani’s view — by mentioning the prosecution of the 1993 World Trade Center bombers?
"The real problem is his having said that in essence the 1993 situation was really correctly handled," Giuliani said this morning, "by the criminal prosecution and these people being incapacitated." Au contraire, the former New York Mayor said, "it was a terrible mistake not recognizing the full dimension of what we were involved in."
"He seems to think 1993 — that is the paradigm," Giuliani said, taking some liberties and making some assumptions about Obama’s thinking. "There’s a failure to recognize that you had to go farther than that."
Said Giuliani, in familiar language, "he wants to go back to being on defense."
He pointed to comments made by a fellow New Yorker as evidence of this view. "We could point to many, many examples during the debates where the words ‘irresponsible’ and ‘naïve’ were applied to Senator Obama — but not by a Republican but by Hillary Clinton," said Giuliani. "So I know she’s probably in a different position now, but these are issues Hillary Clinton very dramatically pointed out during the Democratic primary."
The erstwhile GOP presidential candidate also said "the remarks made yesterday by several people in the Obama camp that If Bin Laden were taken to Guantanamo he would be given Habeas Corpus rights is startling. And again, a reminder of maybe where they are going on the Democratic side and what we would have in store for us if we have a Democratic presidency. The reality is that there seems to be more concern about the rights of terrorists, or alleged terrorists, than for the rights that the American people have to safety and security."