THE BLOG
08/23/2016 03:18 pm ET Updated Aug 24, 2017

Senator McCain, the Constitution, and Sgt. Bergdahl

It is not that United States Senator John McCain (R-AZ) should be loved less, but that the Constitution should be loved more that he should be rebuked for declaring that Sgt. Bowe Bergdahl is "clearly a deserter" who should be punished. Senator McCain--like all other federal or state officers--took an oath to defend, not to besmirch the Constitution under Article VI.

All civilized jurisprudence celebrates the presumption of innocence. United States Chief Justice Edward White elaborated in Coffin v .United States (1895): "The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law."

A companion constitutional principle enshrined in Article I, section 9, clause 3 condemns bills of attainder, i.e., the legislative infliction of punishment without the procedural safeguards afforded by a judicial trial. As Justice Felix Frankfurter taught, "The history of liberty has largely been the history of observance of procedural safeguards."

At present, Sgt. Bergdahl faces trial by general court-martial for desertion and misbehavior before the enemy for walking off his Army outpost in Afghanistan in 2009. Senator McCain has impaired Sgt. Bergdahl's constitutional presumption of innocence by declaring him "clearly a deserter." The Senator insistence that "I am not prejudging" was no more convincing than the Queen of Hearts in Alice in Wonderland: "Sentence first--verdict afterwards." Mr. McCain has not retracted his support for Republican presidential nominee Donald Trump, who has played judge, jury, and prosecutor too to vilify Bergdahl as a "dirty rotten traitor."

The Senator has also used his legislative influence over the armed forces in attempting to coerce punishment for Sgt. Bergdahl . Last October, Mr. McCain responded to Lt. Col. Mark Visger's recommendation of neither jail time nor a punitive discharge for accused with the implied threat, "If it comes out that [Bergdahl] has no punishment, we're going to have a hearing in the Senate Armed Services Committee." As Chairman, Senator McCain wields substantial influence over military weapons and budgets and the appointments and promotions of military officers. The spirit if not the letter of the bill of attainder prohibition denounces the exertion of legislative power to prescribe judicial punishment for a named individual. And as St. Paul preached in 2 Corinthians 3:6, "the letter kills, but the Spirit gives life."

The United States Supreme Court also instructed in Berger v. United States (1935) that the government's interest in a "criminal prosecution is not that it shall win a case, but that justice shall be done." And justice requires the appearance of justice, not coerced verdicts or punishments.

Senator McCain similarly dishonored due process and the presumption of innocence on March 26, 2014, when he asserted that Edward Snowden was working for the Russians: "Sure. Not a doubt in my mind," he responded when asked by the Washington Examiner.

Mr. Snowden, however, has never been charged with acting as a foreign agent for Russia, and Senator McCain has never adduced proof other than his personal conviction that he has. Last July, Snowden wrote the following which conflicts with the Senator's narrative: "Putin has signed a repressive new law that violates not only human rights but common sense. Dark day for Russia."

Senator McCain should retract his constitutional blasphemies. The rule of law is too important to be crucified on a cross of pique or anger.