Kaffee vs. Jessup II?: Obama and McCain Square Off on Habeas Corpus Rights for Accused Terrorists

At a town hall meeting in Wayne, Pa., today, Sen. Barack Obama, D-Ill., embraced an issue hardly made for his own TV ads: the rights of detainees accused of terrorism.

"I think we should make it an issue," Obama said, referring to the 5-4 U.S. Supreme Court decision in Boumediene et al v Bush "that said we are going to live up to our ideals when it comes to rule of law.

Basically what it said was those prisoners that we hold in Guantanamo deserve to be able to go before a court and say, “It wasn’t me” or “I didn’t do it.”

Obama, a former senior lecturer at the University of Chicago Law School, cited "that principle of habeas corpus, that a state can't just hold you for any reason without charging you and without giving you any kind of due process -- that’s the essence of who we are. I mean, you remember during the Nuremberg trials, part of what made us different was even after these Nazis had performed atrocities that no one had ever seen before, we still gave them a day in court and that taught the entire world about who we are but also the basic principles of rule of law. Now the Supreme Court upheld that principle yesterday."

(Though Obama was clearly referring to the principle of giving criminals a day in court, it's worth pointing out the distinction here, that the Nuremberg trials did not give Nazi war criminals access to U.S. courts, but to a special international military tribunal created by the U.S., USSR, France and the U.K. Though Nuremberg currently is considered a model for international law, it's not as if Rudolph Hess had access to challenge his detention in U.S. federal court.)

"John McCain thinks the Supreme Court was wrong," Obama said. "I think the Supreme Court was right."

The Democrat mentioned that the Supreme Court is likely just one Supreme Court justice retirement away from Roe v Wade being overturned. "Justice Stevens is 85, 86, 87?" Obama said (The correct answer, by the way: 88.) "You know he wants to retire, I suspect, sometime soon.

"So this is going to be a major issue and people are going to have to think about it," Obama said. "If you want to preserve civil liberties, if you want to preserve civil rights, if you want to make sure that the courts are looking out for consumers and not just big business, then that should be a factor in your decision-making in this election."

One suspects that Sen. John McCain, R-Ariz., agrees. Yesterday he called the court ruling “one of the worst decisions in the history of this country.”

"These are enemy combatants," McCain said. (Watch HERE.) "These are people who are not citizens. They do not and never have been given the rights that people in this country have. And, my friends, there are some bad people down there, there are some bad people."

McCain predicted that the courts will soon be flooded with habeas corpus cases on behalf of the detainees. His message: "Our first obligation is the safety and security of this nation and the men and women who defend it. This decision will harm their ability to do that."

I haven't seen any good recent polling on this issue -- I don't know if any exists.

But I don't know if this is a winning political issue for Sen. Obama. A dynamic can be created where Obama is Lt. Daniel Kaffee, McCain is Col. Nathan Jessup.

And McCain's message to America will be: You want me on that wall. You need me on that wall.

(Obviously this is a deeply flawed metaphor, especially given McCain's activism against torture. But the disdain Nicholson's character show's for Cruise's in that clip, not to mention the general personas – crabby, cantankerous military man against glib pretty-boy lawyer -- might amuse you on this Saturday afternoon.)

- jpt

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