Via MSNBC’s First Read: Would bin Laden get habeas rights?
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.
“If Sen. Obama did receive that 3 a.m. phone call,” Scheunemann said of the call so often mentioned throughout the Democratic primaries, “I guess his response would be to call the lawyers in the justice department.”
So what? Are we saying that we don’t have enough evidence to warrant holding him that a court would release him? To read these kinds of responses (and the general uproar in general over the issue of habeas corpus rights) is make one think that that habeas corpus petitions are get out of jail free cards. They aren’t–they are simply challenges over the right to hold a prisoner, i.e., that the confinement of the prisoner is illegal. The notion that there is a court anywhere in the United States that would free Osama bin Laden because he filed a habeas petition is asinine. Beyond that, is the McCain camp arguing that the United States has no evidence against bin Laden?
Really, the habeas issue is only problematic for suspects for whom there is little evidence that they are terrorists (or that the government doesn’t wish, for whatever reason, to share the evidence). Indeed, it would seem that if the US government can produce no evidence to show why a detainee ought to be held, that perhaps that detainee ought to be freed. Is this really all that complicated?
In the case of someone like bin Laden, there would be plenty of evidence to hold him, and there would be no court in the land that would free him. As such, this is utter red herring on the part of Scheunemann.
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June 17th, 2008 at 9:44 pm
To be honest, Bin Laden remains under indictment from the Khobar Towers bombing. So while he would get habeas rights, the Justice Department already has a dossier of evidence that could be used in court, as they’ve been hoping to do exactly that for quite some time.
June 17th, 2008 at 10:01 pm
I would have thought your assessment of this situation would be pretty well accepted by the “champions of freedom” on the right, but was actually surprised when I talked to some of my GOP friends that this was not the case. Limbaugh and Hannity also had plenty to say about it as well. Isn’t habeas corpus a fundamental tenet of our nation itself? Somethings are just beyond comprehension.
June 17th, 2008 at 10:20 pm
Are we saying that we don’t have enough evidence to warrant holding him that a court would release him?
1. The evidence we have may not hold up to the standards of proof used in court. (Though it may be considered of high value in the military or intelligence context.)
2. The evidence we have may disclose details of our counterterror operations or methods that give operational info to our enemies. (This has happened before.)
3. Just because something happened does not necessarily mean you can prove it. Saddam Hussein was faring quite well against many of the charges against him because: a. the location of certain mass graves could not be ascertained; b. the identity of military officials who carried out political killings was unknown; c. the documentary evidence detailing these facts had been destroyed; d. the surviving relatives lacked personal knowledge of the events. So, with respect to some of the charges against Hussein, you had a chorus of witnesses claiming Saddam Hussein kidnapped and murdered their family members, and no proof other than than their bare assertion. But everyone knows he did it.
4. As should be clear you don’t wage war by collecting evidence; you wage war by killing people. Simply killing Osama bin Laden is the best option. We shouldn’t even be entertaining giving him a trial, whether he has a right to one or not.
June 17th, 2008 at 11:45 pm
I still contend that the basic problem is that we went into an unconventional war without a plan to deal with the fallout, in this specific case, the fallout being prisoners, and trying to decide after the fact is a nightmare.
Unconventional war fought with conventional rules is always a failure. In this case, the conventional rules that we try to apply break down; they might have worked fine in WW2 with clear combatants and a clear cessation of hostilities. But the nature of the war (indeed, I’ve often thought whether we should even call it war, or invent some new word for this thing that we have created) is such that both are difficult to determine.
We started this fight without a working plan as to how to quickly process prisoners and release them if they are in fact innocent. We had no mechanism in place for determining if their disposition. We tried to do that after the fact when the information has become muddled and memories unclear.
What is worse, the issue was politicized. And by that I mean an awful lot of the criticism of the system has, from day 1, been needlessly personally venomous toward the president. Instead of criticising the policy, the man was attacked in such a way that he was backed into a corner with no way out in which he could save face.
Now, whether he deserved to or not is of course debatable. But one thing that my years of combat and negotiation taught me is that it is almost never a good idea to back a man into a corner without leaving him a way out with honor. Whether he deserves honor or not is irrelevant; what happens if you don’t offer it is the man entrenches himself and braces for a fight. And that’s what you get, every time - he’ll stand by his position until he dies and everything around him is destroyed rather than tuck his tail between his legs and look a fool.
The Cuban Missile Crisis was resolved peacefully because Kruschev was allowed a way out with some dignity. He did not deserve it; but he got it, and it likely prevented a nuclear war. I’ve often wondered if the early critics of the president had been less personally venomous (calling him a tyrant, etc.) if his administration would have been as slow to compromise as it has been. I guess we’ll never really know.
RE Bin Laden: it really is an utterly academic question; if we find the guy he’s toast; he’s worth more as a corpse than he could ever be in detention. That’s official policy, of that I can assure you.
June 18th, 2008 at 2:56 am
“As should be clear you don’t wage war by collecting evidence; you wage war by killing people.”
With all due respect, Mr Kroeb, that definition of war you give is barbaric. Killing people should be a side-effect of waging war, not the be-all and end-all of it. By your definition Hitler could have argued that his mass slaughter of Jews, Gypsies, and others was merely a legitimate extension of Germany’s waging of World War II, and as such he and his cohorts should have not been charged with genocide and other war crimes at Nuremburg.
“Simply killing Osama bin Laden is the best option. We shouldn’t even be entertaining giving him a trial, whether he has a right to one or not.”
That doesn’t sound like war to me. It sounds more like straight-out murder. (In fact it sounds like the very sort of thing Saddam himself might have once done to his own enemies.)
Are you seriously suggesting that even if bin Laden surrendered he should not be taken into custody but either put against a wall and shot through the head or strung up from the nearest convenient tree?
If even a monster like Saddam Hussein could be afforded a trial, why not Osama bin Laden?
Besides, think about it. If America cannot prove, beyond all reasonable doubt, that Osama bin Laden of all people is guilty of planning the crimes of 9/11 what exactly does that say about its ability to prove, beyond all reasonable doubt, that those held in Guantanamo Bay and elsewhere are guilty of similar or lesser offences?
Or should they too be disposed of in the fashion you’re suggesting? After all, is America not in the middle of a war? And is war not waged “by killing people”? If so, then by your yardstick America would be quite within its rights to forego trials for those now being held in Guantanamo Bay and elsewhere. Instead it would line them up against a wall somewhere and solve its entire detainee problem with a spray of bullets.
Is that how justice is to be served during the War on Terror?
June 18th, 2008 at 5:17 pm
Stephen:
Your questions are understandable in light of lack of tactical experience; when we talk about “killing Bin Laden” we’re not saying we would shoot him even if he surrendered. You can’t surrender to a JDAM or a Tomahawk cruise missile, which would probably be the way we engaged him if he was located.
The plain fact of the matter is that wherever Bin Laden is, he is going to have a high level of security around him. You learn very early in training to be a combat leader not to put soldiers into bloody gunfights when a target can be attacked using indirect fire. If we got good intel about Bin Laden’s location, that site would be bombed multiple times before we ever put boots on the ground. This is a basic tenet of AirLand Battle and Maneuver Theory; we would then follow the strikes up with a mop-up raid to do BDA (battle damage assessment) and figure out whether the strike was successful or not.
Hence, it is rhetorical in nature to ask what we would do if he surrendered. Odds are that if he’s ever found he won’t have a chance to; he and his security details will all be dead before they know that they are under attack - a tactic that he clearly embraces himself, as I doubt many of the victims of his attacks (including the 9/11 massacre) ever saw it coming; one can hardly say it isn’t fair.