Full disclosure: I am not a lawyer or a judge. I don’t own a black robe—or a white one with a hood, for that matter.
Thus you can be reasonably well assured that I haven’t been paid to dress up somebody’s crimes in the costumes and cosmetics of hallucinatory constitutional precedent in order to make them look perfectly legal and otherwise acceptable, despite their perversion of cherished American freedoms.
I’m explaining this just so you know that everything I say will be even-handed and unbiased, which is a stunning achievement for a citizen living in a country being run by war criminals.
Here is my LLD-free legal opinion.
The Bush administration decided that the prisoners it is holding at Guantanamo and torturing elsewhere have no right of habeas corpus and no standing in U.S. courts because they are held not in an American prison but in foreign territory. Guantanamo is part of Cuba, though it’s under American control.
Now, John McCain was born at Coco Solo Naval Air Station in the Panama Canal Zone, which is in Panama but at that time was also under American control. Thus, by the logic of Bush administration lawyers, he was born in a foreign territory.
So is John McCain eligible for the presidency?
He would have been, under the old rules, and I know the question has been hashed out and pretty much laid to rest in his favor—but that was before Bush administration lawyers began to dismantle the constitution, with the partial blessing of the Supreme Court and the whole-hearted blessing of the court’s four reflexive conservatives.
Lawyers for the Bush Justice Department adamantly insist that prisoners held at Guantamo are outside the sovereign territory of the United States, thus beyond the reach of our judicial system.
If persons held in a foreign territory have no access to U.S. Courts, why should someone born there have access to the Oval Office?
Under the original constitution—the one we were using before Bush, Cheney, Addington, Yoo, Gonzalez, craven congressmen, and right-wing justices ripped out a few of its vital organs—you didn’t have to be born in the U.S. to qualify for the presidency, as long as you were born to U.S. citizen parents. Alexander Hamilton’s problem was not that he was born in the British West Indies or that his parents weren’t married, rather that his mother was of French descent and his father was the son of a Scottish laird.
Under the present (and, one hopes, temporary) crippled constitution, things are different. Over a million citizens are now on the Watch List of people who get pulled aside for questioning and invasive searches at airports, many of them profiled simply because they are foreign born, or look like they might be, or have exotic names.
Obviously, one cannot campaign across the country for the presidency if he or she is badgered and detained at every airport.
So foreign-born citizens are clearly being denied the right to run for president, regardless of their parents’ citizenship, and John McCain is one of the chief advocates of such restrictions. When the Supreme Court ruled recently that 37 Guantanamo detainees have a constitutional right to challenge their detention, McCain called the decision "one of the worst in history." He has also supported every unconstitutional grab for power made by Bush, Cheney, and assorted mouthpieces.
As I say, I’m not a lawyer. Neither is McCain. His unindicted co-conspirators—those apostles of criminal torture Yoo, Gonzalez, and Addington—they’re the lawyers.
In layman’s jurisprudence, it’s hard to see how any foreign-born vandalizer of America’s rule of law has any claim to eligibility for the presidency until we restore the original version of the constitution that he’s been helping to sabotage.