It is not surprising that John McCain disagrees with the Supreme court decision in Boumediene et al vs USA that found the suspension of habeus corpus in the the Military commissions act unconstitutional. He was one of the two principal authors of the act.
Republican presidential candidate John McCain on Friday sharply denounced a Supreme Court decision that gave suspected terrorist detainees a right to seek their release in federal courts.
"I think it's one of the worst decisions in history," McCain said. "It opens up a whole new chapter and interpretation of our constitution."
Senator McCain goes on to prove that he knows his radical new interpretations of the constitution as he explains what he thinks congress did when, according to him, acting within its constitutional authority
on Friday, speaking to about 1,500 people at a town hall meeting in Pemberton, N.J., he attacked the decision, saying the law he helped write "made it very clear that these are enemy combatants, they are not citizens, they do not have the rights of citizens."
OK so according to McCain, congress found that a number of people were enemy combatants.
Wouldn't That make the MCA a bill of attainder as in "No bill of attainder or ex post facto Law shall be passed." ? Furthermore, the bill, according to McCain has the aggravating feature that congressmen were not even familiar with the facts concerning the people they were condemming including, for example, their names.
Obviously congress can, at most, establish procedures for deciding who is an enemy combatant and that is all the MCA presumed to do. Clearly it wasn't personally written by Senator McCain but rather by someone who has some idea what is written in the Constitution (Lindsey Graham maybe ?).
Although given the fact that the bill ignores "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." makes it unsuprising that McCain thinks that it ignores the next sentence in the constitution.
And who ever told John McCain that the ban on bills of attainder and the writ of habeus corpus are rights restricted to US citizens ? You will notice that the sentences from Article 1 section 9 do not include the word citizen. In fact the word does not appear in article 1 of the constitution. The restrictions in Article 1 describe things that congress may not do, at all, ever, to anyone, citizen or alien, pacifist or warrior.
Senator how about checking, when does the word "citizen" first appear in the body of the constitution ? Ah I see (just checked) article 4 section 2 which comes well after Article 1 Section 9.
"The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." That is US states may not discriminate against citizens of other states (this was made more difficult by the 14th amendment). Notably Article 4 like the nth clause of the 14th amendment restricts state legislatures, in particular, it bans discrimination based on state citizenship (note citizenship rights certainly did not include the right to vote until the 15th amendment was ratified).
Unless I am much mistaken, the concept of US citizenship was introduced by the Alien act of 1800 and does not appear in the constitution or the bill of rights. If the founders had wished to introduce it, they could have done so along the lines of the 14th amendment (without the key bit which implies that African Americans are citizens) as in : The citizens of any state "are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." They did not do so, probably because the explicit declaration that citizens of each state were, from ratification on, a different type of citizens : citizens of the USA, was too radical.
I might be wrong about that, but the legal principle that the constitution provides rights to non citizens is extremely long established (not to mention the only possible good faith reading of the text). The conviction that it is a myth created by judicial activists that The Constitution establishes (or recognizes) rights of non-citizens as valid as the conviction that it is a myth that the founders mandated the separation of church and state -- something to be expected of McCains ex friends Hagee and Parsley but not of someone who swore to protect uphold and defend the constitution.
I propose a constitutional amendment.
Before he or she enter on the Execution of his or her Office, each representative and each senator shall take the following Oath or Affirmation:
"I do solemnly swear (or affirm) that I will to the best of my Ability, preserve, protect and defend the Constitution of the United States which I swear (or affirm) under penalty of perjury reads as follows" and then read the constitution aloud. twice.
Notice that I didn't cut and paste the constitution into the oath, because my proposed amendment would make it an infinite loop.