I’d missed this piece of demagoguery from John McCain about Barack Obama’s response to the Supreme Court’s ruling about enemy combatants:
“Senator Obama is obviously confused about what the United States Supreme Court decided and what he is calling for,” McCain said in a statement issued by his campaign. “After enthusiastically embracing the Supreme Court decision granting habeas in US civilian courts to dangerous terrorist detainees, he is now running away from the consequences of that decision and what it would mean if Osama bin Laden were captured. Senator Obama refuses to clarify whether he believes habeas should be granted to Osama bin Laden, and instead cites the precedent of the Nuremburg war trials. Unfortunately, it is clear Senator Obama does not understand what happened at the Nuremburg trials and what procedures were followed. There was no habeas at Nuremburg and there should be no habeas for Osama bin Laden. Senator Obama cannot have it both ways. In one breath he endorses habeas for terrorists like 9/11 mastermind Khalid Sheikh Mohammed and in the next he denies its logical conclusion of habeas for Osama bin Laden. By citing a historical precedent that does not include habeas, he sends a signal of confusion and indecision to our allies and adversaries and the American people.”
I really think it’s McCain who’s confused here. If Osama bin Laden or anyone else were in the jurisdiction of a properly constituted international tribunal, the U.S. judicial system obviously wouldn’t have the authority to rule on his status one way or the other. The ruling had to do, in part, with the Bush administration’s silly effort to use the ambiguous status of Guantanmo Bay to hold people in American captivity while somehow also outside the reach of American law. A suspect who’s genuinely in someone else’s custody (rather than in the fake sense that the Gitmo detainees are in Cuba) is a whole other can of worms.
The other thing is that the right the Court gave the detainees is a pretty basic one — a legal right to challenge the basis for having classified them as enemy combatants. In the case of bin Laden, this would be child’s play — the man issued a declaration of war against the United States. It’s pretty clear that he’s an enemy combatant.
To get a persuasive critique of the Court, McCain needs to rely on the names of individuals who are clearly enemy combatants — guys like KSM and OBL. But in the case of those guys there’ll be no problem proving that they’re enemy combatants. To generate a good example of the decision creating a legal problem, McCain would need to name someone for whom there’s no good evidence of his enemy combatant status. But a guy like that doesn’t make for persuasive rhetoric. After all, if there’s no sound basis for believing that he’s an enemy combatant, why detain him?