Some people are saying that what McCain said here:
is a McCain flip-flop on a Nuremberg-Style trial for bin laden because he criticized Obama when he brought up the idea before.
I don’t think it was really a flip-flop because McCain was attacking Obama’s inconsistency (in McCain’s opinion) and not necessarily the Nuremberg idea itself:
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.
There are several problems with this, however:
- Habeas Corpus is a writ to challenge your detention. Habeas corpus is a necessary writ to prevent a government from arresting and holding people without recourse. Unless the government is holding people without evidence (obviously not the case in bin laden’s case), then resolving any habeas challenge should be routine.
- The Nuremberg trials were created pursuant to the terms of Germany’s unconditional surrender at the end of the war in Europe. As a result, it is a rather special animal that can’t really compared to anything today, at least if one is going get down to the specifics. It’s not that the war criminals tried at Nuremberg were never offered habeas corpus rights, it’s that those rights were surrendered upon the unconditional surrender of Germany and the consent of the Germans to having war crimes tried in an interenational tribunal.
- Obama was likely referencing Nuremberg to give an example of an international tribunal, not to suggest a specific set of rules and procedures for such a tribunal.
Obviously the terrorists haven’t consented to being tried by us or anything of that nature, so they still hold their habeas rights as long as we don’t treat them as prisoners of war. It is likely that if we capture bin laden alive and wish to try him in such an international tribunal, we would dot our i’s and cross our t’s so ensure that we have proper legal authority to try him in such a manner, in which case if bin laden chooses to invoke his habeus right, it should be dealt with and dismissed in a pretty routine manner.
One should also note that, if bin laden is captured, he may very well be held in US custody, but not on US soil (like most other detainees in Guantanimo) and thus isn’t immediately subject to US Constitutional jurisdiction (like those being held in Guantanimo).
