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