After last week’s Supreme Court decision granting terror detainees the right of habeas corpus, Sen. John McCain (R-AZ) blasted the decision as one of the worst ever. Raising the specter of Osama bin Laden being tried in civil court, McCain invoked the Nazi war crimes trials to declare that bin Laden should be denied habeas rights at all costs, Supreme Court be damned:
There was no habeas at Nuremburg and there should be no habeas for Osama bin Laden. … Let me be clear, under my administration Osama bin Laden will either be killed on the battlefield or executed.
McCain has invoked the Nazi trials at Nuremberg before to uphold his position on habeas. Unfortunately for McCain, in that instance it was to push for granting those rights to terror detainees, as he explained to Tim Russert in 2005:
Now, I know that some of these guys are terrible, terrible killers and the worst kind of scum of humanity. But, one, they deserve to have some adjudication of their cases. And there’s a fear that if you release them that they’ll go back and fight again against us. … [I]f it means releasing some of them, you’ll have to release them. Look, even Adolf Eichmann got a trial.
Those accused of Nazi crimes at Nuremberg were not tried under U.S. law, and thus did not have explicit habeas rights. But Nazis unquestionably received fairer trials than terrorist detainees today. The fact that some accused and tried at Nuremberg were found innocent and released shows that Nuremberg offered a practical habeas right. By contrast, the Pentagon has indicated it could continue to imprison a Guantanamo detainee indefinitely, even if he were found innocent by a military tribunal.
What, exactly, does McCain find so frightening about bringing Osama bin Laden to court? He is unquestionably guilty and will be found guilty. A fair trial would only add moral authority to his conviction. Or is moral weight another aspect of the war on terror that McCain doesn’t care about?
Today on the campaign’s official blog, Michael Goldfarb re-posted McCain’s declaration that, like Nazis, bin Laden should be denied habeas rights. He laughably claimed that it is Sen. Barack Obama (D-IL) who has “refused to clarify his position” on habeas for detainees.