The October surprise Republicans dream of

Everybody knows it, but it took a notoriously ruthless Republican operator to come right out and say it. Charlie Black, John McCain's campaign adviser, recently let drop to Fortune magazine that another terrorist attack on US soil would be a "big advantage" for the Republican presidential candidate. Of course McCain lost no time in distancing himself from Black's remark. "I cannot imagine why he would say it. It's not true. I've worked tirelessly since 9/11 to prevent another attack on the United States of America. My record is very clear."

Black duly threw on some sackcloth and echoed McCain: "I deeply regret the comments. They were inappropriate. I recognise that John McCain has devoted his entire adult life to protecting his country and placing its security before every other consideration."

Now, Black is no novice in campaign tactics. Nearly 40 years ago he helped put Jesse Helms in the US senate, and has been an innovative dirty trickster ever since. He knew exactly what he was doing when he let drop that remark to Fortune, just as McCain no doubt approved the indiscretion. Both men know that McCain's last best hope of beating Barack Obama in the November election is to rattle the nation's teeth with vivid evocations of national emergency, and stampede the fearful voters into putting a 'war hero' into the Oval Office. Both men also know that almost seven years after the Twin Towers went down, the possibility of a terrorist attack is not the prime source of disquiet for most Americans, who can barely afford to drive to work or pay the mortgage on their homes.

The signs that the 'War on Terror' is losing its political edge are manifold. In the months after the 9/11 attack the Bush administration faced no serious opposition in trampling the US constitution underfoot in the name of national security. The Patriot Act shot through Congress with just one senatorial 'No' vote, from Russ Feingold of Wisconsin. The symbol of US 'resolve' around the world became the prison at Guantanamo, filled to this day with men against whom no formal charges have been laid, subjected to appalling tortures and denied the right to legal counsel.

This month the US courts have delivered two resounding rebuffs to the White House's efforts to say that prisoners held at Guantanamo have no rights under US law. On June 12, in the case of Boumediene vs Bush, the US Supreme Court ruled, 5-4, that Lakhdar Boumediene, a Bosnian citizen seized in October 2001, was entitled to habeas corpus - a right under the US constitution to have an independent court of law review the legality of his detention. Justice Anthony Kennedy stated ringingly in his draft of the majority opinion that "the laws and Constitution are designed to survive, and remain in force, in extraordinary times".

The Right erupted in fury, denouncing 'the Boumediene Five'. The Wall Street Journal bellowed in an editorial that the majority justices had signed the death warrants of American soldiers fighting terror overseas. At a town hall meeting in Pemberton, N.J., McCain called it "one of the worst decisions in the history of this country". For his part Obama reiterated his "firm belief that we can track terrorists, we can crack down on threats against the United States, but we can do so within the constraints of our constitution".

Then, last Monday, a three-judge federal court in Washington followed swiftly in the tracks of the June 12 ruling, declaring that Hozaifa Parhat, a 33-year-old Uighur Muslim from the oppressed Xinjiang province of China, seized in Turkmenistan in 2001, had the right to seek release immediately through a writ of habeas corpus. Thus, in the space of less than a fortnight, the US courts kicked away what Bush and his lawyers have insisted for seven years to be the vital need to hold terrorists indefinitely, without charges or rights of any sort.

Judges mostly rule in tune with the temper of the times, and the decisions this month are no exception. What McCain's man, Charles Black, was correctly saying is that if a new terrorist attack had rocked America on June 1 of this year the judges might well have held their hand. He's not the first to have given expression to that thought. David Addington, senior aide to Vice President Dick Cheney was quoted last year by Jack Goldsmith, a former Justice Department lawyer, as having said yearningly that "we're one bomb away from getting rid of that obnoxious court", referring to a secret and in fact compliant court that oversees clandestine wiretapping.

Almost every presidential election sees allegations of an imminent 'October surprise'. There's scant doubt what sort of surprise McCain and the Republicans, aghast at Obama's surge in the polls, are yearning for. ·