Of course, he begins his column almost as if he doesn't want to be taken seriously.
“Evidently, the president doesn’t appreciate that we already have a constitutional crisis,” McCarthy begins, “First, there is the matter of the ongoing constitutional crisis that, as al-Qaeda’s attempted Christmas Day attack amply demonstrates, is now endangering our nation.”
Sooo … he says that one guy burning up his own reproductive potential is a constitutional crisis? And I thought liberals were bed-wetting wimps.
McCarthy's chief beef is that the Obama administration says it's going to give the detainees at Guantanamo a trial or set them free. (It remains to be seen if he is true to his word.) Worse still, Obama's letting the Supreme Court bully him into it: “The courts have no more right to tell the president to release an enemy combatant than a president has to tell a judge how to rule on the validity of a contract,” McCarthy says.
And McCarthy is exactly right, if you don't bother to consult the text of the actual U.S. Constitution. Article III, Section 2 says that the Supreme Court is charged with judging all cases under the Constitution. No exceptions. Here it is in black and white:
“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made...”
But McCarthy has a comeback: Oh sure, he says, the court might have a right to hear cases. But that doesn't give them a right to tell the executive branch to free them:
“Second, even if we were to accept that judges should be reviewing the military’s determination of who is an enemy combatant, the power to review is not the power to release.”
It sounds like he's saying that if courts have the right to hear the case – which they unquestionably have under Article III, Section 2 – they certainly can't make a decision that means anything. McCarthy goes on to explain that the executive branch has total and unchecked power (that's what “plenary” means) to wage war, and put people in prison without legal recourse:
“The Constitution gives the political branches plenary responsibility for the conduct of war. The conduct of war includes the detention, trial, or release of enemy combatants. The federal courts have no role except the one they have usurped. This brazen power grab flouts the bedrock constitutional separation of powers, and the political branches do not have to abide it. Indeed, as national defense is their chief responsibility, it is their duty not to abide it.”
Reading his words about “separation of powers” almost makes me want to agree with him … until I read the rest of his statement. According to McCarthy, just how unchecked is that power of detention? The entire Anglo-American common law justice system needs to be reversed to presume that people are guilty until proven innocent:
“The Justice Department should not just want to appeal, it should welcome the opportunity to persuade the appellate court to do what Congress has failed to do: impose on the district courts the presumption in favor of detention that the Supreme Court outlined in Hamdi.”
And just to add an exclamation point on the whole unlimited “plenary” powers of government, it's worth pointing out that McCarthy uses the Hamdi case, which involved a U.S. citizen who had been detained without trial. When a president detains anyone, even an American citizen, McCarthy emphasizes that people have no rights:
“In its 2008 Boumediene decision, the Supreme Court concocted a judicial power, purportedly rooted in the Constitution, to review the validity of alien combatants’ detention in wartime. The ruling is absurd. These are alien enemies detained outside the United States, whose only connection to our country is a hostile one. They do not have constitutional rights. They have only the rights Congress chooses to give them. ”
McCarthy's arguments are a 100 percent reversal of the American system of rights “endowed by our Creator,” the protection of which is the reason “governments are instituted among men.” In McCarthy's system, rights are privileges bestowed upon subjects by government, not by God, and are probably best revoked permanently.
Thus, McCarthy doesn't believe the U.S. Bill of Rights limits the government, the traditional American point-of-view. He doesn't believe in the Constitution protects God-given rights, such as the Fifth Amendment guarantee to all men that “No person shall be ... deprived of life, liberty, or property, without due process of law” or the Sixth Amendment guarantee of for all men that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” Note that these are “amendments” to the Constitution, that they changed the Constitution and limited that “plenary” power McCarthy talked about. Note also that neither the Fifth nor the Sixth Amendments made any distinction between Americans and foreigners, man or woman, black or white. The Bill of Rights was written to shackle the government, not to dole out rights (as if government could really play the part of God).
But McCarthy says he's got a good reason for reversing the American system of protecting rights:
“Between our security and the supposed unfairness of the detainees’ continued detention, there is no doubt about which must take precedence. The president’s oath is to protect the American people, not appease the Muslim masses abroad.”
The problem with that statement is that it is completely wrong. The President takes an oath to follow the law and protect the U.S. Constitution, not to protect the “people.” If McCarthy doubts it, he should dust off his copy of the U.S. Constitution, which specifies the oath the President must take (Article II, Section 1):
“I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”
The President pledges to defend the Constitution and Bill of Rights at a priority higher even than protection of the people, because protecting the people's rights under the U.S. Constitution and Bill of Rights is the only way to protect the people. Protecting the rights of detainees, many of whom were innocent and not picked up on a battlefield, is a far better way of protecting the nation than McCarthy's efforts to champion of the detention of people – American citizens and foreigners alike – without trial indefinitely.