Orin Kerr whacks Andy McCarthy:
Consider McCarthy’s basic argument that lawyers who represented detainees “aided the enemy in wartime,” and should normally be guilty of treason. If that’s true, isn’t the federal judiciary, and aren’t the Justices of the Supreme Court, also guilty of treason? In fact, aren’t the judges the kingpins of this treasonous plot to “hurt the war effort”? After all, lawyers only make arguments to judges. It doesn’t actually help detainees to make argument courts reject. It’s up to the judges to rule one way or the other. If the lawyers are aiding the enemy, they’re only minor players: It’s the judges, and especially the Justices, who are the real guilty parties, as they’re the ones that actually help the detainees by ruling in their favor. Does McCarthy think the Justices of the Supreme Court are guilty of aiding the enemy, and that (if we treat them like everybody else) they should be “indicted for coming to the enemy’s aid during wartime”?