If there were any lingering doubts that Senator John McCain, the Republican presidential nominee-elect -- who's trying very hard to paint himself as a "maverick" and "independent" of President Bush -- is marching in lockstep with him on the war in Iraq and on the overall war on terror, those doubts were removed in spades last week.
Transforming Thursday's Supreme Court decision on so-called "enemy combatants" into a campaign issue, McCain on Friday denounced the court's 5-4 ruling, which -- for the third time -- declared unconstitutional Bush's policy of indefinite detention without charge or trial of foreign terrorism suspects at the U.S. military base at Guantanamo Bay, Cuba, ruling yet again that the detainees have a right to challenge their detention in civilian courts.
"The United States Supreme Court [Thursday] rendered a decision which I think is one of the worst decisions in the history of this country," McCain said at a town hall meeting while campaigning in Pemberton, a southern New Jersey town adjacent to McGuire Air Force Base.
War or No War, President Must Abide by the Constitution
This blogger could not disagree more sharply. To the contrary, McCain, like Bush, has chosen to ignore a fundamental fact of law: The Constitution does not give the president authority to carve out an exception from habeas corpus -- the requirement that the government file charges against individuals it deems dangerous to Americans -- solely because the detainees at Guantanamo are not U.S. citizens and they were apprehended in wartime.
Both the Bush administration and McCain have chosen to disregard the Supremacy Clause (Article VI, Section 3) of the Constitution, which establishes it as "the supreme law of the land." It has also chosen to disregard the Geneva Conventions -- the 1929 international treaty governing the treatment of prisoners of war -- despite an earlier Supreme Court ruling that the administration must abide by it, since the treaty was ratified by the Senate and thus has the force of law under the Supremacy Clause of the Constitution.
Everyone Under U.S. Jurisdiction -- Citizen or Not -- Has Right to Due Process
"We made it very clear these are enemy combatants," McCain said Friday, defending his position. "They have not, and never have, been given the rights of citizens of this country."
Sorry, senator, but just because the Guantanamo detainees aren't U.S. citizens does not give the president the right to lock them up and throw away the key without bringing up charges against them in a legal proceeding, whether in a civilian court of law or in a military tribunal. Every person under U.S. jurisdiction -- whether a citizen of the U.S. or not -- has a right of due process of law under the Fourteenth Amendment.
The court left unresolved the constitutionality of the president's system of military tribunals under the Military Commissions Act of 2006, which Bush rammed through the then-Republican-controlled Congress after the high court declared unconstitutional the system the administration had put in place after the September 11, 2001 terrorist attacks.
Two of McCain's allies, Senators Lindsey Graham (R-South Carolina) and Joe Lieberman (I- Connecticut), joined him in denouncing the high court's decision. As a practical matter, the ruling amounts to "three strikes and you're out," to use a baseball analogy, as this was the third time that the high court -- with Justice Anthony Kennedy casting the pivotal fifth vote and writing the majority opinion -- has declared Bush's system of dealing with the Guantanamo detainees unconstitutional.
Graham Calls for Amendment to Reverse High Court's Ruling
Graham, a close adviser to McCain on military and justice issues, said Thursday the Constitution might need to be amended to override the justices' decision. ruling. McCain did not rule out that option, but said there are other avenues available, including drafting a new law to limit detainees' access to federal courts.
Graham is living in a dream world if he thinks such an amendment will pass. First of all, it takes a two-thirds majority in both houses of Congress to pass a constitutional amendment, then it has to be ratified by a three-quarters majority of the 50 state legislatures. Given the current political makeup of Congress -- and the fact that it's an election year -- the amendment hasn't got a snowball's chance in hell of passage.