Can President John McCain Execute Osama Bin Laden Without a Trial? Nope.

by Julian Ku

Well, you can’t say that there are no differences between the presidential candidates on the war on terrorism anymore. GOP nominee John McCain has issued this blistering statement on what his administration would do to Osama Bin Laden. Namely (and apparently unlike Senator Obama), McCain has pledged to either kill or execute Bin Laden. He also says, flatly, there will be no habeas corpus for Bin Laden.

This is undoubtedly good politics, but is it legal? The killing part, I think, is plainly legal under U.S. law as long as the congressional authorization for a military response to September 11 remains good law. But the execution without trial and/or the denial of habeas corpus is much murkier. As it stands now, I don’t believe the President can execute (as oppose to kill on the battlefield) Bin Laden without sending him through the military commission system (which could take a while). Nor does the President control whether or not Bin Laden gets habeas corpus. The Court’s Boumediene decision makes that question tricky, but certainly there is good reason to believe that Bin Laden would have access to habeas courts under the Boumediene decision, if he is detained by the U.S. government in a territory under U.S. control.

9 Responses

  1. Execution without trial is a murky area of law? We must be living in a different world.

  2. It’s pretty hard to tell what he is saying, but my guess is it’s much less interesting than you suppose. My reconstruction from the statement: (a) under the Supreme Court’s decision (aka “the worst decision in history”), Bin Laden *would* be entitled to habeas; (b) Obama is wrong for approving of this, because “there should be no habeas for Osama bin Laden”; (c) under a McCain administration, he will be killed somehow, eventually.

    I’d wager he’s intent on decrying the decision, rather than proposing anything particular to be done about it, but perhaps if pressed he would support yet another legislative substitute or even suspension. I don’t read this as committing him to a misinterpretation of Boumediene or defiance of it (he’s saying he should not get habeas, not that he will not under present law). And the pledge to execute Bin Laden — eventually, and conceivably both after trial and habeas — is more in the way of chest-thumping. Probably meant to imply that a softer Obama administration would be disposed to send him to a detox center.

  3. If in 1945 Harry Truman said that Hitler would either be killed or executed, I don’t think anyone would jump to the conclusion that this rhetorical flourish means that Hitler would be executed without a trial.

    On the other hand, McCain clearly does not understand that Habeas is a power of the court that, as Boumedienne now makes clear, is separate from ordinary cases to which the Constitution grants Congress control over jurisdiction. In Habeas the only control is Suspension under the conditions enumerated in the Constitution. Thus neither the President nor Congress can prevent a court from entertaining a Habeas petition from anyone in US custody. It is up to the judge to dismiss petitions that have no legal basis.

    Of course, while preserving the power and authority of the court, Boumedienne did not establish that detainees have any rights under the Constitution, or that they have any valid legal basis to challenge their detention. The analysis showing that the CSRT was not a substitute for Habeas strongly suggested that detainees must have a reasonable opportunity to introduce evidence that they are not enemy combatants and certain other procedural rights.

    The rest of the criteria for challenge, rules of discovery, admissibility of hearsay, the standard of proof, and all the rest are left for the District Court to piece together from the dicta in Hamdi and Boumedienne. Remember the essence of Boumedienne is that Habeas is different from all other court procedures, so the rules of other proceedings don’t necessarily transfer. Logic (and the text of Hamdi) also suggests that the rules for Habeas in the case of someone held as an enemy combatant are different from the separate rules for reviewing all other types of responses: civilian criminal, mental health, deportation, extradition, quarantine, contempt, … Right now the only precedent, the combatant status review organized by the District Court in al Marri, is under en banc review by the Fourth Circuit.

    McCain is clearly wrong in asserting that Boumedienne means “habeas for terrorists like 9/11 mastermind Khalid Sheikh Mohammed.” So far, the Supreme Court has only indicated that Habeas may extend to detainees who challenge their classification as enemy combatants. Detainees such as KSM or Jose Padilla who always admitted their combatant status and anyone who asks for and receives POW status in a future conflict may still have no basis to petition for Habeas.

  4. MacCain should read this

  5. When did you go SOFT ON TERROR, Julian!?

  6. It is being bruited that McCain and Graham are introducing legislation as soon as next week for a “national security court.” William Kristol discussed this on Foxnews a couple of days ago. That’s where McCain is going. I also think the execution is in the line with the old Western adage, “We’ll give you a fair trial and then we’ll hang you.” I do not think he is saying the execution would be extra-judicial (just making the faux sound to warm the cockles of all those folks who seem perfectly willing for the United States to act like any two-bit murderer), but he is leaving all the process sotto voce – sounds so manly.





  7. I believe the correct phrase always went:”Let’s give him a fair trial before we hang him!” By the way, I am amused by this whole fandango because the power of the court via Marbury v Madison was a put-up job to begin with. This power of the Court sprung strictly from the mind of one man, fully clothed and armored like Athena from the forehead of Zeus, without any basis in the Constitution whatsoever. If John Marshall had had a shred of intellectual integrity he would have told Madison he was in the wrong court and to walk down the hall to the Court of Claims–but his personal egotistical view of how government should be run wouldn’t allow such ethical action. What part of the term “co-equal” branches is not understood here? The “CO” or the “Equal?” At least the powers Bush is/was claiming are firmly rooted in the very verbiage of the Constitution.Marbury is the personal view of a single man.

    In this regard it seems that Bush’s opinion is even more

    valid than Marshall’s. Both are singular points of view–only opinions really–but at least Bush’s is rooted in the Constitution while Marshall’s is free-floating. This is not only the view of critics such as Posner, et al, but Political Scientists such as the late Duane Lockard of Princeton.

    My personal take on this “dilemma” is that the reason that such powers as the Court presumes are not formally and explicitly provided for in the Constitution is that the Founders, being men of immense practicality and real-world(as opposed to academic) experience viewed the Constitution as first and foremost a “political” document; not a “legal” one.

    Plessy was “Good Law” for a goodly number of years, but that longevity didn’t make it rightchous vis a vie the good of the polity. I see no reason that any President and Legislature should bow to the opinions of five unelected judges appointed for life, no matter how long Marbury has been considered “Good law.” No way, no how, unh-unh. The President and Congress alike all take the same oath as the judges to protect the Constitution, so I’m goin’ with the side of the bigger battalions. Oh yeah, that’s right, the Supreme Court is not only out-“personed” by Congress–they ain’t got no guns neither, does they? Let’s see them enforce their writ against Bush, and if Congress doesn’t like Bush’s approach the Constitution always provides for impeachment–IF Congress has the will to make it stick.

  8. Well, of course Osama should get to file a habeas petition.

    I mean, is anyone worried that the feds would have some sort of problem showing probable cause to detain him?

    The problem, obviously, is that McCain doesn’t actually know anything about habeas corpus, or else is happy to feign ignorance for demagogic purposes.

  9. None of the decisions up to and including Boumediene have indicated that a Habeas petition should be entertained from someone who admits that he is an enemy combatant. So far only KSM falls clearly in this category. Now I don’t count my terrorists before they are caught, but I suspect that if we ever detain Bin Laden that he will not claim to have just be a tourist who was just in the wrong place at the wrong time. Without a dispute over combatant status, it may well be that he is not entitled to Habeas under a McCain or any other administration.

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