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Osama Bin Laden And Habeas Corpus

MSNBC’s political blog featured an item with this headline: “Would bin Laden get habeas rights?” And with that in mind, you can feel pretty conf

MSNBC’s political blog featured an item with this headline: “Would bin Laden get habeas rights?” And with that in mind, you can feel pretty confident that the news gets worse from there.

In a question posed toward the end of the call by Stephen Hayes of the Weekly Standard, the McCain campaign might have found a new talking point with which to emphasize the possible effect of the Gitmo decision. Hayes’ asked if — in the campaign’s interpretation — the Court’s decision would mean that if Osama bin Laden was captured and imprisoned at Guantanamo, he too would be entitled to Habeas Corpus rights. The McCain campaign’s answer was yes.

And, of course, we’re supposed to believe any legal standard that would extend habeas rights to bin Laden necessarily means the legal standard is wrong. The Examiner struck a similar note, emphasizing the Obama campaign’s willingness to allow bin Laden to have habeas rights.

Barack Obama’s foreign policy advisers said Tuesday that Osama bin Laden, if captured, should be allowed to appeal his case to U.S. civilian courts, a privilege opposed by John McCain.

Responding to questions from The Examiner, Sen. John Kerry and former White House counterterrorism czar Richard Clarke said bin Laden would benefit from last week’s Supreme Court decision giving terrorism suspects habeas corpus, the right to appeal their military detention to civilian courts.

Kerry added that bin Laden would get habeas rights no matter who gets elected president, because it’s the law. Randy Scheunemann, McCain’s senior foreign policy adviser, said those rights should not be extended to bin Laden, though it wasn’t clear what “should” has to do with this.

I realize the political dynamic here. For the right, capturing bin Laden and following the rule of law is somehow a sign of “weakness.” If bin Laden enters the justice system, it’s akin to “coddling.”

All of this is terribly silly, and as demagoguery goes, unusually cheap.

First, it’s probably worth noting that this might not just be an academic exercise if Bush hadn’t decided that capturing the al Qaeda leader who orchestrated 9/11 was no longer important. Indeed, perhaps we can have the Tora Bora discussion again?

Second, Republicans have suggested that Obama would want terrorists (including, presumably, OBL) tried in civilian courts. But that’s not true, either.

Third, getting a conviction in this case wouldn’t be especially difficult. As one of John Cole’s commenters put it, “I guess not a single person in the Justice Department has ever figured out how they’re going to try Osama bin Laden. I know it’s a complex case involving some difficult-to-pronounce syllables and maybe even some maps with even more difficult names, but are we really unprepared for a Habeas response regarding Osama Freakin’ bin Laden?”

And finally, the question itself about whether bin Laden would somehow qualify for habeas is itself foolish. Anonymous Liberal explained this very well:

Embedded in Hayes question is the bizarre and completely unamerican notion that your legal rights should somehow depend on how “bad” a person you are. The more serious the crimes for which you stand accused, the less rights you should have under the law. But that’s quite obviously not how any system of rights is supposed to operate. Hayes’ question is like asking whether a serial killer has the right to counsel or the right to a jury trial. Of course he does. The whole point of due process is to determine whether someone is guilty. It’s the punishment that is supposed to vary depending on the seriousness of the crime, not the process.

It’s pathetic that someone with even moderate intelligence would ask a question like that or think that it was in any way insightful.

Quite right, but I have a hunch we’ll be hearing it again, quite often, between now and November.

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