06/26/2008 05:12 am ET Updated May 25, 2011

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."