But he won't have to, thanks to a recent amendment by Sen. Lindsay Graham (R., S.C.). This one bars Guantánamo detainees from going to federal court to enforce the rights that McCain would declare sacrosanct.
A shabby compromise is in the making. Bush removes his veto threat - as long as Graham's amendment remains in the bill - to transform McCain's principles into a hypocritical gesture: Listen up, world, we are against torture at Guantánamo - as long as nobody can complain about it.
To deflect critics, Graham has created an exception to allow Guantánamo inmates their day in court once they are finally convicted of a crime by a military tribunal. But this exception creates more perverse incentives. If a detainee has been victimized, the best way to cover it up is to hold him indefinitely as an "enemy combatant" and never send him before a military tribunal. That way, he will never get access to a federal court.
Despite the high stakes, Graham did not even give Congress a fair chance to consider the matter. He made an end run around the Senate Judiciary Committee, chaired by Sen. Arlen Specter (R., Pa.), and persuaded the Senate to accept his court-stripping rider as a floor amendment. Specter eloquently protested, but he was outvoted in the rush to push the matter into a conference committee.
The Senate leadership plans to continue its rush tactics this week. It will ask the Senate to rubber-stamp the final conference bill before it begins its Christmas recess. But Specter should stand firm against a cynical compromise that will defang McCain's anti-torture initiative. Given the grave issues raised by the Graham amendment, a filibuster is entirely appropriate to give the judiciary committee a chance to expose the Graham amendment to sober second thought. It would be tragic if McCain's admirable proposal becomes an occasion for yet another assault on the fundamental principles of the American Constitution.
This is just one more case of a right wing war on judicial review and the courts, it is far more than just rhetoric that assails judges for what they term "judicial activism" the Republican Party today seems fundamentally opposed to the legal rights of prisoners. Jon Kyle sponsors a bill to severely limit federal judicial review in death penalty cases. Its as though "judicial activism" is the root of all evil and that the definition of "judicial activism" is any decision that upholds the rights of the accused. The Republican Party today is against the essential concept of due process of law, that is the only reasonable conclusion that can be drawn from this string of bills stripping the rights of those accused of crimes and detainees.