N o one wants to be the first candidate to invoke Sept. 11. As a campaign tactic, 9/11 chest-thumping has become both predictable and tacky. So this week, John McCain's campaign hit on a creative solution: Invoke Sept. 10.
Sept. 10? Yup. Barack Obama has "a Sept. 10 mind-set," McCain foreign policy adviser Randy Scheunemann informed reporters Tuesday. The idea, as Scheunemann explained for those too thick to grasp the implied insult, is that a "naive" Obama just doesn't get it about terrorism. Obama's offense? He praised the U.S. Supreme Court's June 12 decision that Guantanamo prisoners, detained for years without charge or trial, should be able to ask federal courts to rule on their continued detention.
McCain's surrogates were quick to seize the opportunity: Obama thinks that courts are the way to keep America safe! He "ignores that we are in a war against terrorism," opined former CIA Director R. James Woolsey. The McCain campaign even dredged up Rudy Giuliani, who lamented that Obama was "more concerned about the rights of terrorists ... than the rights that the American people have to safety and security."
Does Obama have a "Sept. 10" mind-set, whatever that is? No.
What Obama did was make a glaringly obvious point: If the Bush administration had prosecuted the captured terrorists in federal court instead of trying to put them through an error-riddled system of military commissions created on the fly, those terrorists would by now have probably been tried and convicted in fair proceedings that would have been accepted as such around the world.
Obama's point boiled down to common sense: If it ain't broke, don't fix it. Our federal courts have been in business for more than 200 years. They've tried brutal Mafia bosses who controlled entire American cities, violent drug lords, Nazis, spies and the Oklahoma City bombers. U.S. courts have procedures for handling sensitive national security evidence, and they have already successfully tried al-Qaida terrorists, including "shoe-bomber" Richard Reid and 9/11 plotter Zacarias Moussaoui. These men had their day in court, made idiots of themselves, and now they're locked away in a U.S. supermax prison.
Better still, they're now rightly dismissed by the rest of the world as megalomaniacal thugs - not the kind of guys anyone would want to emulate. In contrast, Khalid Shaikh Mohammed and his buddies remain untried at Guantanamo, insisting proudly that they're "warriors" against the mighty United States - and as Obama commented, that has "given a huge boost to terrorist recruitment in countries that say, 'Look, this is how the United States treats Muslims.' "
To the McCain campaign, Obama's remarks show that Obama thinks terrorism can be adequately addressed through criminal law alone. But when the McCain camp isn't denouncing Obama for supposedly wanting to coddle terrorists in the courts, they're denouncing him for wanting to use military force to capture or kill terrorists.
In August 2007, for instance, Obama said: "There are terrorists holed up in (Pakistan's) mountains who murdered 3,000 Americans. They are plotting to strike again. . . . If we have actionable intelligence about high-value terrorist targets and (the Pakistani government) won't act, we will." Ever since, McCain's been taking this out of context and hammering Obama for "suggest(ing) invading our ally, Pakistan."
You can't win with these guys.
The "terrorism is crime/terrorism is war" squabbling is as silly as the "great taste/less filling" fights depicted in the old Miller Lite ads. Most Americans know that "terrorism" takes many forms, and we need to be flexible in response. Prosecutions in federal courts make sense when we're talking about suspects far removed from battlefields; military force makes sense when U.S. troops are confronting fighters in Afghanistan or Iraq.
Here's the saddest thing about this week's dust-up. Not too long ago -- before he decided that becoming the Republican presidential nominee required him to cozy up to his party's most demagogic extremists and play politics with 9/11 -- McCain was the champion of a common-sense, values-based approach to terrorism.
It was McCain who refused to sanction torture. It was McCain who said Guantanamo detainees "have rights under various human rights declarations. And one of them is the right not to be detained indefinitely." It was McCain who advocated moving Guantanamo detainees to Kansas' Ft. Leavenworth, where they would come under the certain jurisdiction of federal courts. It was McCain who insisted that we respect the basic rights even of enemies who "don't deserve our sympathy" because "this isn't about who they are. This is about who we are."
John McCain, who are you now?
Rosa Brooks is a professor at the Georgetown University Law Center.