Beyond the Dome

If U.S. authorities ever capture Osama bin Laden, should he have the right to appeal his detention?

That was the scenario John McCain's campaign surrogates tried to sketch this morning as they jumped on Barack Obama for noting, in an interview with ABC News yesterday, that the plotters of the first attack on the World Trade Center in 1993 were tried and convicted within the standard legal system.

To the McCain campaign, that comment suggested the future Democratic nominee would take a pure law enforcement approach to fighting terrorism -- a stance at odds with the "war on terrorism" construct that Republicans believe most Americans still prefer. It also gave the campaign an opportunity to slam last week's Supreme Court ruling that detainees at Guantánamo Bay must be given habeas corpus rights -- the right to appeal their detention in federal court.

"I think someone should frankly ask Senator Obama if he believes that if Osama Bin Laden were captured and taken to Guantánamo whether he should have Habeas rights," McCain national security adviser Randy Scheunemann said on a conference call with reporters this morning.

The answer, according to Obama surrogate and 2004 Democratic presidential candidate John Kerry, is yes.

"The Supreme Court of the United States has ruled that they have those rights," Kerry said on an Obama campaign conference call this afternoon. "If John McCain were president, he would have to give them those rights."

Richard Clarke, the former White House counterterrorism adviser to Presidents Clinton and Bush, agreed. "Terrorists have been held and prosecuted successfully throughout the world, including the United States," he said. "It can be done, and has been done in the past."

This debate will no doubt continue to play out over the course of the campaign, giving voters ample opportunity to weigh in on one side or the other. But it would be a far different sort of political dilemma if a President McCain or a President Obama ever actually has to decide how to treat a captive bin Laden. Then again, as Clarke observed, "he would go down fighting, from everything we know."