Well, let’s hand it to Andrew C. McCarthy, the guy starts off with a bang:
The Supreme Courtâ€™s decision in Hamdan v. Rumsfeld is a national-security disaster.
Wow. Not just bad, it’s a disaster, like 9/11 or Iraq or something. Oh, wait, McCarthy thinks Iraq has been peachy for national security. Not only that, he thinks Iraq is about nothing except national security (from 2005):
But they are not the primary goal of this war, which is to destroy the network of Islamic militants who declared war against the United States when they bombed the World Trade Center on February 26, 1993, and finally jarred us into an appropriate response when they demolished that complex, struck the Pentagon, and killed 3000 of us on September 11, 2001.
That is why we are in Iraq.
Back to Hamdan. Here’s the explanation:
Hamdan is a disaster because it sounds the death knell for the National Security Agencyâ€™s Terrorist Surveillance Program (TSP), the early-warning system developed by the Bush administration to ward off a reprise of 9/11 by penetrating the enemyâ€™s wartime communications.
Damn, damn, double-damn. President Bush was getting to the bottom of this terrorism problem with his plan to surveil all Americans; laws, privacy and Constitution be damned, and the Supreme Court had to go and remind us that the President is constitutionally bound to obey all laws. Triple-damn!
Really, we all know that we could end terrorism tomorrow by allowing government to bug all of our phones, computers and abodes. Where would they hide? Nowhere, that’s where! If we don’t allow this to happen, we will be killing Americans!
Oh, hold on, drop that constitutional mumbo-jumbo right now, McCarthy’s got some news for you!
…an implication that would have horrified the Framers: The presidentâ€™s power to safeguard the United States from external threats is dependent on Congressâ€™s willingness to â€œauthorizeâ€ protective measures. Our forebears knew better. They had lived through over a decade of the Articles of Confederation. They had seen national security by committee. They well understood that it was no national security at all.
Obviously, since it was two years later that we reached a truce with Britain.
Of course they were wary of executive powerâ€™s tyrannical proclivities â€” thatâ€™s why they divided powers and left Congress in charge of the purse strings (among other things). But the Framers realized the need, in times of crisis, to concentrate the nationâ€™s protective arsenal in a single set of hands, the presidentâ€™s.
McCarthy has clearly gone mad or turned to drink. Assuming he has ever read the Constitution, he’s forgotten nigh every word of it and replaced it with right wing blatherous swill. Here are some of the “other things” the Constitution grants to Congress:
Clause 11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
Clause 12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
Clause 13: To provide and maintain a Navy;
Clause 14: To make Rules for the Government and Regulation of the land and naval Forces;
Clause 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
Clause 16: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
Sound like a single set of hands to you? Of course not. McCarthy’s answer, obviously, would be that we’re in a “time of crisis.” Um, no, we’re not. We’ve got people that hate us, who would like to find some way to attack us. When does that end? Never. That’s not a crisis, that’s life. And we’ve got it a lot better than many other nations, not to mention a few that have suffered under our hands.
More importantly, the Constitution requires the President to execute the laws, not fucking make them up as he goes along:
(The President) shall take Care that the Laws be faithfully executed…
At this point, you must simply wonder, what the holy hell is McCarthy talking about?
And if he isn’t basing any of this on what the Founding Fathers actually thought or wrote, what is he basing it on?
Hard reality? Nah:
…the Bush administrationâ€™s TSP authorizes the interception of any communications across national borders between persons reasonably suspected of al Qaeda ties and any others â€” even if those others are in America. Especially if those others are in America. It is the ones in America that can kill Americans.
Holy smokes. McCarthy doesn’t know that this is blatantly false, long ago proven incorrect? Sure he does. That’s why we get “Al Queda ties and any others.” Any who? What? Eh? Where’s the fence on this ranch, pardner?
There is no fence. The Constitution does not guide these people. Reality does not guide them (thus national security doesn’t). Just ideology. Look again, if you don’t believe me:
…although the TSP does not comply with FISA, that did not make it illegal.
See? He’s blinkers, mate!
Those familiar with the tack the right has taken on the courts in recent years know full well that being Republican or conservative means virtually nothing to them. The “liberal activist” judges have for years been conservative Republicans sticking to the Fathers and the Constitution. Par for the course, Justice Kennedy, the last sane conservative on the bench, is now their final target.
Yet, under the Kennedy theory, only by governing as if we were always in crisis could the political branches ensure that the powers specially needed for crisis would be available when threats finally arise.
Funny, McCarthy has tied himself in so many knots he’s forgotten that he just specifically claimed this was all about us being in a time of crisis. That’s exactly what McCarthy and Bush and the right have proposed: indefinite crisis, neverending. No benchmarks, no scorecards, just an eternal threat, as long as there is a 1% chance, or a .001% chance that we could be in danger.
…what if a president, or Congress, is wrong? What if the president signs a flawed law?
Zoinks. Thank God for the wisdom of George W. to protect us!
McCarthy’s premise for this article is that Congress being able to “fix” things (presuming one thinks they are broken) isn’t good enough. The whole premise behind the defense of Bush is that he couldn’t go to Congress to get the laws changed. Not only that, but that Congress can’t even be reasonably informed about what Bush is up to. Yet the obvious answer to this question is that Congress can amend laws, and indeed was told that FISA, amended after 9/11, needed no further amendment. So the answer is obvious, if Congress thinks a law is a problem, Congress can fix it. If the president thinks so, he can wield influence with Congress to fix it. In today’s rubber-stamp Congress, we are to believe that this was a problem?
So why the trickery? Is he deliberately trying to keep the reader off of solid ground?
Hamdanâ€™s imperial Congress is not the system the Framers bequeathed us. For them, national security was dependent on vibrant, independent presidential authority, able to fend off what Hamilton (in The Federalist No. 73) aptly described as â€œ[t]he propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments[.]â€ Thus did Madison (in The Federalist No. 48) warn of â€œthe danger from legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations.â€
Boy, an imperial Congress! A meddling Court! An Executive denied his rightful powers!
It almost makes sense, as long as you don’t let the actual Constitution interfere with it. According to McCarthy, the president is king. If he feels like something is good for national security, that’s it. Congress has no say, the Supreme Court has no say, neither has the duty of oversight. The actual words of the Constitution are irrelevant, just the soundbite version of it, the “He’s commander-in-chief, get it!?!?” version. If George Bush isn’t allowed to be king, then that makes Congress king, or the SC king, or whatever line of bullshit you can imagine.
In the end, this article is pure snake-oil, elaborately constructed around fundamental premises which crumble like cookies upon the slightest inspection. As per usual, in the right wing universe.