McCain's Take On Bin Laden, Habeas Corpus Is Delusional, Legal Scholar Says

Sen. John McCain's presidential campaign, led by new attack dog Rudy Giuliani, alleged on Wednesday that Barack Obama lacked the chops to lead the country in the war on terror. The Illinois Democrat, aides declared, was more concerned for the legal rights of alleged terrorists than he was for the security of the American people.

"The remarks yesterday by several people in the Obama campaign that if bin Laden were taken to Guantanamo he would be given habeas corpus rights, is startling," said the former mayor.

Lost amidst the attacks was the question: what, exactly, would be so damaging should Osama bin Laden receive habeas corpus rights as a detainee? For the time being it is a moot point, as bin Laden has not been caught and the Supreme Court has ruled that, should he be brought to Guantanamo, he would be given these legal rights regardless of the president's disposition. McCain, should he become president, would have to abide by the ruling or disregard the Court and disrupt the constitutional separation of powers.

But the debate is a worthwhile one to examine, as it provides an indication of where each candidate stands on legal and war on terror prerogatives. Asked about the issue on a conference call following one by Giuliani, aides to Obama called it absurd, dismissing the notion that granting Osama bin Laden habeas rights would somehow weaken America's position against him.

"I have not doubt that there would be no problem establishing an evidentiary basis to hold Osama bin Laden," said adviser Greg Craig. Added Rep. Adam Smith: "Do Rudy Giuliani and others really think a court would look at Osama bin Laden and say you have no legal reason to hold him?"

Indeed, legal scholars are equally baffled at the argument that Supreme Court's recent decision hinders the broader war on terror.

"It would not mean that Osama bin Laden would be released," said David Cole, a professor at Georgetown University's law school. "It would simply mean that the government would have to justify his detention under the rule of law. And as Colin Powell himself said when the subject came up of closing Guantanamo and bringing people to the U.S... 'We should have no fear of justifying their detentions'... The right recognized by the Supreme Court is a fundamental one. It is only the right to go to court, it is not the right to be released unless the court concludes that there is no legal authority to continue to be detained. The whole argument that we wouldn't have a justification to keep Osama bin Laden legally detained is delusional."

Pressed to clarify their concern over granting habeas rights to detainees, McCain's aides acknowledged that there would be little to no chance that bin-Laden would win his freedom through legal loopholes. The problem, they warned, is that criminal trials would lead to the public airing of sensitive intelligence.

"I think maybe legislation working with the Congress, which would define more narrowly the habeas corpus rights of people who we have detained," McCain told CNN. "It's very broad right now. At least try to provide some definition of that so we're not ending up in endless lawsuits. Already the detainees have brought suit on diet, on reading material, on all kinds of other things that are certainly not central to what we have detained them for. So I would hope that we could at least do that."

McCain, his staff notes, views a military tribunal system as a method to protect sources while simultaneously providing an adequate system of judicial review.

But even that logic, observers say, is shaky. For starters, Obama never closed off the idea of utilizing military commission when properly formed - it was the Supreme Court which lost patience with the status quo at Guantanamo. Secondly, U.S. forces currently have the authority to kill bin Laden, making his judicial status a secondary concern. Mainly, however, the Supreme Court's decision only grants the right to ask for a habeas hearing, not a right to a any particular venue for a trial. Bin Laden, if he were captured and brought to Guantanamo, would only be able to challenge the status of his detention - legal scholars say - not force a case to trial.

This notion that you can't bring these people to justice because of the risk [of revealing sensitive information] is wholly hypothetical. Whoever thinks there is not enough evidence against Osama bin Laden is bizarrely out of touch with the modern world," said Aziz Huq, Justice, Deputy Director of the Brennan Center for Justice, "What the Supreme Court said is that if you are wrongly classified the federal courts have the power to order your release. And with Osama bin Laden it just doesn't make sense that this issue would even arise. You are talking about criminal prosecution and not detention."

Comments

[brizzle]

Man, I can't wait until we get past November, so we just don' t have to read all this articles about this old man and his old ideas...

[ClevelandTom]

The problem that Bushm McCain an others have with giving some legal rights to detainees is entirely political, not legal.

Open court proceedings on detainees' status risk showing that a substantial portion of the detainees are not terrorists at all and they have been held for no other reason than as a PR body count to show that Bush's war on terror is effective. Even for those detainees who can be shown to be members of AQ, having their stories revealed in court will probably show that most of them are mere foot soldiers and further cast doubt on the effectiveness of Bush's and McCain's policy.

Further, court proceedings may well show that the best way to fight terrorism is by using relatively low-cost, low-profile intelligence and law enforcement techniques rather than extremely expensive, very high-profile military operations. This would also undercut the Bush and McCain policy.

Open court proceedings on these guys is likely to alter the American's public image of AQ and other terrorists organizations. At this point, most Americans perceive the terrorists as super-evil, super-devious, super-capable beings. Seeing them in person and hearing their stories is likely to reveal them to be much less scary and much less of a threat to US security. That would also hurt Bush and McCain politically.

[trinity29]

how does a civilized nation justify capturing people and not feeling the need to give these people the right to defend themselves? how does a civilized nation, after committing atrocities on innocent detainees, can justify their refusal to grant the detainee to challenge their captor especially if they were detained under conditions of false evidence? If you know they are terrorists, then charge them, and try them. What are you afraid of? Otherwise, just claim that we brought people in to do with as we please and we don't really care what anyone thinks. Stop trying to justify the violation of basic human rights with some sort of twisted legalese to obfuscate the real issue -- you don't have solid evidence against many of these detainees but feel that they can still give you information on possible enemy attacks and therefore can render useful.

[AnotherAndy]

The short answer is we are Not civilized anymore. (if we, as a nation, ever really were.) Habeas Corpus is the bedrock foundation for all our other rights Without it, all the others are meaningless.

With due process out of the way there was nothing to stop this administration from indulging in an orgy of pure barbarism by torturing, degrading, and sexually humiliating anyone they snatched or fell into their hands.

We are starting to get a glimpse of the goings-on at Bagram airbase and Gitmo, but will we ever know how many "enemy combatants" were tortured, abused, and "disappeared" in the CIA's network of secret prisons? Remember, the CIA has a long bloody history of aiding petty tyrants to capture, torture, execute, and dispose of tens of thousands of troublesome people in South America and elsewhere.

Whatever happens, the crimes of this administration will never be forgotten, to our everlasting shame.

[japobere]

I think the problem is that people like John McCain (and all of his aides) and Tucker Carlson and William Crystal and all of these other people that are criticizing the Supreme Court's decision really just don't understand what habeas corpus is. If we're convinced enough that somebody is a terrorist, it shouldn't (one would think) be that hard to prove it. If they do understand what habeas corpus is and they still thin that Guantanamo detainees don't deserve it well....that's just messed up. Habeas is a basic right that's been in existence since the origins of English common law and to deny it to these detainees is just a travesty of everything that our Constitution is predicated on.

[Enlightened22]

A real democracy is never about how you treat your own citizens, it is about how you treat others. The core ideals of a democracy is equality of rights for all, not only to US citizens, but to any human being. You can't start giving up on the rights of foreigners without going on a slippery road that would lead you to restrict the rights of your own citizens. It is clear you can not expect the extreme-right of the GOP to understand such a concept. Their whole functionning bears a marked ressemblance to fascism (propaganda, elitism, use of fear, neglect of the rule of law). But to see a "maverick" Mccain uses fear and the whole right-wing propaganda to attack the core concept of a democracy is simply troubling. It teaches us how 09/11 has not only attacked US security, but it threatened seriously the basics of its democracy.

[debrouillard]

I get the impression McCain can not even believe he is at this level,a major party's nominee for president. To him thas beyond imagination and so he doesnt care what happens from here on.

He just keeps self inflicting himself. He comes across as one of those teams that finds itself at the final by suprise and shows up just to enjoy the crowd and the media attention but not to compete.

[marymansour]

habeas corpus

Lat. "you have the body" Prisoners often seek release by filing a petition for a writ of habeas corpus. A
This is the definition of Habeas corpus. McCain is trying to twist it as something it is not.


writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody. A habeas corpus petition is a petition filed with a court by a person who objects to his own or another's detention or imprisonment. The petition must show that the court ordering the detention or imprisonment made a legal or factual error. Habeas corpus petitions are usually filed by persons serving prison sentences. In family law, a parent who has been denied custody of his child by a trial court may file a habeas corpus petition. Also, a party may file a habeas corpus petition if a judge declares her in contempt of court and jails or threatens to jail her.

[Phil123]

Obama claims that if Bin Laden is captured on his watch, he will "not allow him to become a martyr." What, exactly, does this mean? Would he allow him to grandstand over the course of a protracted legal proceeding? Obama's lack of forethought is appalling.

Bin Laden's influence has dwindled to almost nothing. He lives (or not) in a cave somewhere like an insect. His only "presence" (if you can call it that) is the very infrequent crappy realease of a broadcast that may or may not be him. Best to leave him there, or kill on sight and destroy the remains.

Dragging this vermin out into the light cannot possibly be constructive.

[elderly]

If you don't know what a martyr is (am I am not surprised at that considering the tenor of your post), look it up (if you can read).

bin Laden used his influence to get the criminal in the white house re-elected in 2004. Why do you think that videotape of bin Laden was released days immediately before the election? To help John kerry???? Even you should have the intelligence to understand that bin Laden was terrified of the prospect of bush losing and wanted to assure that his best recruitment tool for al quada would remain in office.

[Enlightened22]

Nice to see you have opinions, what do you think about doing a little research and stop reading USA Today. If you knew anything about the world, but I bet you never traveled to an other country, you would know that among some countries (pakistan, Jordany, Egypt, name it), Bin Laden is highly respected. 70% in Pakistan consider him a hero. Any mistake in the way you handle his case can flare up arab countries. Intelligent and democratic trial can do much more than any military strategy to help US regain some moral high-ground. But hey, you are still probably for a war based on stupid intelligence, happy to see billions being spent to help Cheney's friends companies to make profits in Iraq.

But you see, to understand that, you would need to understand diplomacy, you would need to know that other countries exist and are way better off than the US right now or, to make it short, you would have to start thinking. Or the GOP would have to start thinking, so you can at least repeat intelligent thoughts, instead of that bitter mix of ignorance and hatred you call opinion.

[em0199]

Really so you have been out to the Middle East and seen the lack of influence Bin Laden has I think you are wrong on this. We need to capture him and prosecute him to show other extremists that this is what happens if you decide to do what he did. Unfortunately all we have shown them is that if you attack the US we will not go after you we will start a completely different war that has nothing to do with you. We tell them basically that they can get away with it.

[japobere]

His "presence" is a constant reminder of the failures of this administration. By starting the Iraq War right after 9/11 the Bush administration effectively abandoned the war in Afghanistan against the people that ACTUALLY attacked us. By the way do you think "with liberty and justice for all" has an asterisk next to it that says "except Muslims" or "except people that we think might have had something to do with a plot to attack us"? EVERYONE deserves their basic rights granted by our Constitution. Obama's argument is nothing more than this: we don't have to commit war crimes to prosecute terrorists. We can operate within the boundaries of our Constitution and still get things done. "Lack of forethought", more like "lack of disregard for our Constitution."

[theMightyT]

At least Obama is thinking. If you want to criticize someone for lack of forethought, why not start with George Bush. Lack of forethought on his part is responsible for the disaster(s) the country is mired in, starting with Iraq and Afghanistan but certainly not ending there.

Obama and the people he's surrounding himself with are the ONLY ones who seem capable of putting together a coherent strategy at this point.

And please... your argument about Osama having a stage to "grandstand" on just underlines your fundamental lack of understanding of how the legal system works. Come up with a legitimate argument.

[incontempt]

McCain is in bed with ENRON...he will never be elected..

Want to know why oil is out of whack....listen

http://www.msnbc.msn.com/id/3036677/#25252591

[Phil123]

So Justice Kennedy has decided that US Constitutional rights apply to aliens who are captured on foriegn soil trying to kill Americans. This is what happens when the swing judge is a moron.

Do you think that it would bring closure to the families of Bin Laden's victims to have a public trial with a media circuis at which Bin Laden would have a nice forum in which to air his opinions?

[arvay]

The purpose of our counter-insurgency or anti-terror or whatever term you choose to use is not to "bring closure to the families of Bin Laden's victims" but to successfully and LEGALLY thwart our opponents' efforts. As the court correctly said, we don't switch off the Constitution to handle wars or other emergencies.

The problem we Americans have is that we are led by a gang of incompetent fools who don't have the IQ to handle the task at hand. The court has repeatedly rejected their incompetent and unconstitutional policies, which make us the laughing-stock of the literate world.

Not to mention the lies and war crimes. But those are issues for future, criminal courts to handle.

[Canaris]

No, the Supreme Court has decided that the government should have to prove that said aliens were captured on foreign soil trying to kill Americans, as opposed to being turned in by Habib the goat farmer for a bounty because Habib the goat farmer thinks that said aliens stole one of his goats, or saw his daughters ankle, or because Habib just doesn't like said aliens.

How it works now is akin to the police arresting some random guy because you say you saw him rob a bank, then taking him to the police station and beating him with a rubber hose until he confesses, without checking beforehand to see if he was even in the same state as the bank that got robbed, or if you were drunk in your living room watching "24" at the time the bank was robbed, and then giving you a fat reward for turning him in.

That isn't justice, and it isn't American.

[acv]

It’s no wonder McCain can’t intellectually put his brain around this. Understanding hebeas corpus is a little tricky, so is learning how to use a computer. Instead of learning, what is now the way of the world, Sen. McCain claims he is computer illiterate and his wife logs him on… I’m not kidding, this is true. Go to this link: http://video.yahoo.com/watch/1884558/6206369 or do a search: McCain PC or Mac. It's fact from his own statemennt.

We have two finalists for the position of President of the United States and one of them doesn't have computer skills. If I were doing the inteview, at the end I would say to Sen. McCain, "Thanks for coming . We'll give you a call."

[incontempt]

Keith Olberman, finally, tonight discussed why fuel prices are up...ENRON and the loophole put into law with McCains assistance and with phil grahams direction... close this and oil/gas will drop by 25-50% OVERNIGHT....i want someone in jail....and McCain is directly linked to this corruption at the whole worlds expense...airlines failing....farmers quitting..the whole works.

The hammer is falling and the truth will be exposed....finally

[mcole]

i saw that right, i was actually arguing with my aunt this evening because she wants to start speculating in crude oil and i told her THATS EXACTLY whats causing the prices to rise and its unbelievable that this isnt clear or at least being vigorously investigated

oh well, at least its clear congress isnt sleeping.

[incontempt]

http://www.msnbc.msn.com/id/3036677/#25252591

Please fix this before summer recess congress, the world depends on it!

[crusty]

The Supreme Court decision had more to do with the power of the courts, than it had to do with the rights of any class of individuals.

[harriscrl3]

I hear everyone saying that we are giving terrorist rights and then Obama says that we are a country of laws and lost amidst all this is something that no one even want to consider THAT THEY ARE INNOCENT PEOPLE IN GITMO!!! Do people really think that is farfetched with the INCOMPETENCE of the villiage idiot that lives in the White House. THe more I hear McCain and his cronies speak the more convince I become that they are INNOCENT people being held and tortured who can't even get the opportunity to say I'm a US citizen or I'm not a terrorist.

Carol

[ObserverinVancouver]

That is an excellent point. All the right wingers keep bleating that these people are terrorists, but how do they know? The U.S. forces in Afghanistan were offering bounties for captives turned over to them and taking the word of the people who would ultimately receive the bounty money. A lot of those people were just getting even with their neighbours.

As Keith Olbermann said this evening, any U.S. citizen could get caught up in this nightmare because without habeas corpus you'd never have a chance to get in front of a judge and explain who you are.

[rshrink]

McCain appears more and more clueless. He is much like Reagan and Bush II to me. He is a perfect puppet for the oil companies, the military industrial complex and the big banks. He would not be where he is without their money and clearly he has decided to collude with them. That means that these corporate criminals will continue to run or should I say ruin our country. McCain is a continuation of cronyism, meaning idiotology, loyalty and "buddy qualities" will prevail over intelligence, wisdom and expertise. Obama is a person who has been underestimated. He thinks ahead and is willing to listen to and make use of the intelligence of others. I don't see him picking old roommates to run FEMA as Bush did, leaving people to die and suffer, but not to worry about consequences for the chosen few. He won't put people into the EPA who don't care if Cheney edits their scientific findings. It now is clear that McCain will continue the Bush II practices. He has no coherent positions other than take care of the neocons and the most wealthy, most powerful and the most ethically challenged. If most Americans figure out how to vote for their actual interests instead of being tricked in the various ways that the neocons with Rove leadership have devised, McCain will have a worse showing than Goldwater.