The Man Who Would Give Away the Bill of Rights

In a post at The Corner that is dripping with sarcasm, Andrew McCarthy writes:

So the attorney general, while he was in private practice at a firm that openly bragged about its “pro bono” representation of numerous Gitmo detainees, chose during our war with al-Qaeda to file a brief on behalf of an al-Qaeda operative who tried to kill lots of Americans. So he argued that such people ought to be treated as criminal defendants swaddled in the Bill of Rights rather than enemy combatants detained for interrogation and war-crimes commissions. So what?

It is telling that Mr. McCarthy invokes swaddling as a metaphor for detainees who seek relief under the Bill of Rights — as if merely extending its protections is akin to treating accused people as delicately as one treats infants, when in fact the Bill of Rights is a document whose guarantees were put in place because the Founding generation believed a federal government that failed to respect them would be guilty of tyrannical behavior.

Mr. McCarthy’s post is particularly galling because the al-Qaeda operative Attorney General Eric Holder wanted to protect under the Bill of Rights was Jose Padilla, an American citizen. In other words, when Mr. McCarthy sneers at the idea of swaddling “such people” in the Bill of Rights, the “people” in question are American citizens accused of terrorism. Were it possible to poll folks on both sides of the Bill of Rights debate, from James Madison to George Mason to Thomas Jefferson to George Washington to Patrick Henry, I’m confident they’d all agree that the President of the United States should not possess the unchecked power to strip an American citizen of his constitutional rights by declaring him an enemy of the nation in an opaque process that isn’t even subject to judicial review. As I’ve written before, the Framers of the Constitution even included specific provisions for American citizens who commit treason.

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

In Mr. McCarthy’s opinion, Jose Padilla — and by extension all American citizens — should be deemed guilty of levying War against the United States based on the say so of whoever happens to be president. It is a damn good thing that folks like Eric Holder spoke up on behalf of Mr. Padilla in order to assure that dangerous, unconstitutional precedent didn’t become American law. If Mr. McCarthy’s view had prevailed instead, every American citizen, you and I included, would have less recourse to the Bill of Rights as protection against folks in future federal government posts who were abusing their power.