Why John McCain Got It Wrong About "Wacko Birds"

It takes very little effort to impress a dejected electorate consistently fed the wearisome rituals of political consensus. This fact was nicely illustrated during John McCain’s presidential run in 2000; the Senator told Bush he should be ashamed of Karl Rove and instructed the dreadfully overrated Christian Coalition to go stick it. He has, seemingly, spent every waking moment since then pissing away the political credibility he garnished with Independents fed up with Washington.

His Presidential campaign of 2008 was a dreadful and problematic mess before he even selected a certain former Alaskan Governor to be his running mate. In recent months, he has bellowed endlessly in conspiratorial tones about the Benghazi attack, while failing to show up at a briefing on it. He was called out, last month, by the young Republican Representative Justin Amash for referring to Iranian President Mahmoud Ahmadinejad as a monkey. He seems, by all indications, to be getting progressively more irascible as he ages.

This past week, he referred to those involved in Rand Paul’s filibuster as “Wacko birds,” slamming his hand down on a podium and denouncing the farce. “I treat Sen. McCain with respect,” responded Paul. “I don’t know if I always get the same in return.”

What seemed to peeve McCain the most was Paul’s assertion, on the Senate floor, that Jane Fonda could have been murdered via drone if Obama’s standards were applied domestically during the Vietnam War. Here’s McCain: “I must say that the use of Jane Fonda's name does evoke certain memories with me, and I must say that she is not my favorite American. But I also believe that, as odious as it was, Ms. Fonda acted within her constitutional rights, and to somehow say that someone who disagrees with American policy -- and even may demonstrate against it -- is somehow a member of an organization, which makes that individual, an enemy combatant is simply false. It is simply false."

For all the absurdity of Paul’s filibuster, and the problematic reality that his gripes with the drone program fall into very narrow contours, his cited reading list on the subject was quite impressive. The piece that inspired his Fonda mention was an essay in the National Review by Kevin Williamson. Williamson, a deputy managing editor at the conservative magazine, was responding to, the consistently gladiatorial, Charles Krauthammer, who defended the killing of Anwar al-Awalaki, Samir Khan, and Abdulrahman al-Awlaki in his standard prose style. Williamson argues that, under the broad guidelines adopted by the Obama administration and cheered on by pundits like Krauthammer, the Johnson and Nixon administration would have been able to assassinate any citizen sympathizing with the Vietnamese; that is to say, everyone at an anti-war rally who wasn’t an informant.

Now back to McCain’s gripe with the inference. Would Fonda have been considered an enemy combatant? Nixon’s Oval Office Tapes reveal that the President told his team protestors should be hit with the charge of “giving aid and comfort to the enemy.” Shortly after making this statement, Nixon told Chuck Colson, Special Counsel to the President, to have Fonda’s FBI file sent directly to the White House.

This was May of 1970, after many in the establishment had already turned on the war and the President’s trademark paranoia was at a peak. Having ran on a campaign on the lie that he would end the conflict, while secretly sabotaging a peace process that would have squashed it; he secretly attacked Cambodia, killing thousands and laying groundwork for the rise of the Khmer Rouge. It’s precisely the point in time when the Nixon administration was trying to take down the individuals who made up the President’s infamous enemies list.

This, certainly, isn’t to suggest that they would have assassinated Jane Fonda if they thought they’d get away with it. That really isn’t the issue. Like many people who laugh off the suggestion that an American would be droned while sipping tea at a café, McCain mistakes Williamson’s point as a literal one. The question is not, specifically, whether or not such a thing would happen on American soil, the question is, should the administration possess the right to kill an American in full violation of the Fifth Amendment? If the President can assassinate al-Awlaki, without adequately explaining the charges against him to the American public, what else can it do?

The Jane Fonda assassination is meant to be a thought experiment and pondering it for more than a moment leads to distressing conclusions: the distinction between acting within one’s constitutional rights and aiding the enemy has, in fact, never been blurrier. The Obama administration has, notably, indicted six whistleblowers with the Espionage Act, an antiquated piece of World War I legislation constructed for spies. Bradley Manning recently pleaded guilty to 10 charges against him, but not guilty to the charge of aiding the enemy.

The prosecution aims to argue that Osama bin Laden had access to the cables Manning leaked, an argument that would, presumably, amount to an indictment for The New York Times if one of their newspapers was found at the terrorist’s compound. As Yochai Benkler recently wondered at the New Republic, “Does that mean that if the Viet Cong had made copies of the Pentagon Papers, Ellsberg would have been guilty of ‘aiding the enemy?’”

One assumes so and, with a slope this slippery, what else does this mean? Paul’s case against drone attacks might be specified and clunky, but citing Williamson’s Jane Fonda analogy, certainly, isn’t what makes him a wacko bird.