Frank Gaffney: Well folks, it’s the high point of my week and I suspect of your as well. It’s our weekly visit with Andy McCarthy, the inimitable former federal prosecutor, now pundit par excellence, best selling author, star of stage and screen, and always a very valued guest here at Secure Freedom Radio. You can find his writings at National Review Online and PJ Media, among other places. Also, in print in best selling books like “Willful Blindness”, “The Grand Jihad”, and “Faithless Execution”. Andy McCarthy, welcome back, always good to have you with us
Andy McCarthy: Good to be with you Frank
FG: well, this evening we will be watching the Republican presidential candidates trash around a bit among other things, presumably, about the proposal that Donald Trump made to prevent, at least temporary, the further influx of potential jihadists. You’ve written about this you have been watching closely the toing and froing on it. Give us your thoughts on the Trump proposal and what we should be doing.
AM: Well, Frank I think as often happens Trump has hit on something that is of a great concern to people but he has done it in a sweeping way that would reasonably cause one to wonder how much he actually knows about the topic and in this case it’s the topics of both immigration law and Islam. I think that to the extent he is saying that we need a temporary moratorium on categories of immigration until we fix the system so that we know who is coming into our country and has some way of keeping track of them. He is quite correct about that and in fact there are the proposals in Congress towards the same thing. I don’t personally support a categorical ban on all Muslims, although I do support a procedure that allows us to do categorical bans and I don’t think there’s anything unconstitutional about them and if we couldn’t do them, I would frankly support a complete ban on all immigration until we fix the system. In fact we have a lot of comprehensive immigration reform champions out there who keep telling us the system is broken. In a time of national security peril, when the system is broken, you shut it down until it’s fixed. You don’t try to manage it as a law enforcement problem.
FG: Right. You now one of the things that really got lost almost immediately in the conversation, or hectoring is probably more actuate, about Trump’s proposal was his very explicate statement that ‘until our leaders figure this out’, and what I guess your talking about as well Andy is that we do have a need to figure this out. Specifically, how to differentiate between people coming, many of them out of countries with traditions of Islamic supremacism and adherence to sharia, this repressive even totalitarian doctrine, on the one hand who may be subscribing to it and therefor jihadists and therefore a problem, or may not be. How would you say we go about figuring it out?
AM: Well, I think Frank that sharia is the barometer, or the metric if that’s a better word, for doing this. I think that number one it is important that people understand there is no constitutional bar to prevent the government from inquiring into all kinds of category classifications, including people’s beliefs. In fact, during the Cold War, it was a common place to inquire into whether people were communists or not. And in fact we had laws about that. And even more broadly, I would say that immigration practice has always required ideological assurances of fidelity to our constitution by the immigrants who it should be stressed have no rights to come to the United States. The sovereign doesn’t have reason or have to have a reason to deny people the ability to come in. You can deny immigration as a country because it’s Tuesday and you don’t like letting people in on Tuesday.
FG: Now the question that has arisen particularly in the aftermath of the Trump comments is whether if you do in fact decide as a sovereign matter, that people who are of the Muslim faith should not be allowed in. Is that illegal, Andy? Is that unconstitutional strictly speaking? It may or may not be a good idea but is it based on your understanding and practice of the law, actually impermissible?
AM: It is not unconstitutional to have a categorical ban based on religious beliefs or anything else. I’ve heard some people make the claim that the constitution forbids religious tests, but that’s simply wrong. If you read what the constitution actually says, it forbids a religious test for holding public office. It doesn’t say anything about aliens coming into the United States. I’ve always said Frank, and we’ve talked about this may times, I think we are more of a body politics than a body legal, and just because something is constitutional as you just said, doesn’t make it a good idea, or a politically viable idea. But not everything that is stupid is unconstitutional.
FG: Right. As to whether as it stupid or not I guess to some extent comes down to whether you can use, and I agree with you on this and almost everything else, that sharia should be the test but if you cant apply that test, it is important to understand whether there is some legal constraint that’s operating, as some have insisted, and I’m sure we’ll hear more about that in the course of the debate tonight. But on this issue Andy of and past practice ideological prohibits on people who have a fidelity not to our constitution but to the contrary to a program like totalitarian communism or totalitarian sharia, does seem to me to be something that we ought to be revisiting whether that shouldn’t be back again as a protection against people coming in, we’ll have to figure out how we established that they are indeed adherents to that. But it does seem to me a sensible thing, as you say as a matter of national security under the circumstances
AM: Yeah I think absolutely it is. I think the imposition of the sharia framework is a political agenda it’s not really a religious matter. Islam does have religious tenets but its better thought of as a wholesale ideological program with its own legal code than merely a religion. What we’re talking about now is the ideological program that is something that we vetted for in the past that we vetted for during the Cold War. We’ve gotten away from that, begin in the 1960s with some supreme court decisions about the first amendment and some legislation, that when enacted which basically gave first amendment like privileges to aliens outside the United States by saying ideology was not going to be a good basis of keeping people out. In order to keep people out we wanted proof of ties to violent organizations. That’s something congress chose as a matter of policy to do, its not required by the constitution. And where our security demands that we be more exacting, I think we have to be.
FG: I couldn’t agree more.
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