Does John McCain Know What Habeas Corpus Is?

Our guest blogger is Ken Gude, Associate Director of the International Rights and Responsibility Program at the Center for American Progress Action Fund.

Yesterday, I posted on John McCain’s confusion about the consequences of his proposal to close Guantanamo and move the detainees to Ft. Leavenworth, Kansas. I thought then that perhaps he just didn’t grasp the full implication of that action — that the detainees would be guaranteed habeas corpus because they would be within the boundaries of the United States. But after his latest baffling statement, I am now more inclined to think that he simply has no idea what habeas corpus is, how it’s applied in the legal system, or really any understanding of the most significant war crimes trials in history.

This latest flap occurred after Barack Obama said that if Osama bin Laden survived the operation that results in his capture, an appropriate model for a trial would be something like the Nuremburg war crimes tribunals. John McCain clearly has something else in mind. In a written statement, he first pledged that he would kill or execute bin Laden, then he launched into a bewildering series of supposed attacks that only demonstrated his own ignorance. McCain said it was Obama who was “confused about what the United States Supreme Court decided,” that he is “running away from the consequences of that decision,” and that “it is clear Senator Obama does not understand what happened at the Nuremburg trials.”

So what happened at the Nuremburg trials? A lot of Nazis were convicted and a dozen were executed. The tribunals, established under the joint jurisdiction of the Allied powers — the U.S., the U.K., France, and the U.S.S.R. — were a model for “all subsequent trials holding individuals accountable for their roles in criminal atrocities.”


Nuremberg defendants did not have habeas rights in U.S. courts, but that is because the trials were held in occupied Germany under the control of four detaining powers. It is preposterous to claim, as McCain appears to do, that by citing such a universally recognized model for war crimes trials, Obama intends to replicate the exact circumstances of Nuremberg to the ridiculous extent of bringing Britain, France, and Russia in on a trial of bin Laden that takes place in Hamburg.

Back to habeas, McCain goes on to charge that, “In one breath [Obama] 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.” It’s all well and good to scream about rights for terrorists, but John McCain doesn’t seem to understand that habeas is a very modest tool and should not trouble a government detaining individuals within the boundaries of the law. Only in the warped context of the Bush administration’s unconstitutional legal experiments is the “logical conclusion of habeas for Osama bin Laden” or Khalid Sheik Mohammed even an issue.

Habeas merely allows individuals in the custody of the government to contest the lawfulness of their confinement. It’s pretty simple, follow the law and you have nothing to fear from habeas. John McCain is apparently terrified of habeas. Either he intends to break the law or he doesn’t really know what habeas is. I hope it’s the latter.