Progress Illinois

Rep. Mark Kirk covered a lot of ground on WLS' Don Wade and Roma yesterday. In our rush to knock down his false claim on Chinese oil drilling and his major Obama-Osama gaffe, we forgot to highlight his objection to the recent Supreme Court ruling reinstating Habeas Corpus rights to Guantanamo Bay detainees, a decision Barack Obama supports.

Listen to Kirk assert that if we were to give Osama bin Laden the right to challenge his detention, "You could have a scene like Johnnie Cochran saying, 'If the headdress doesn't fit, you must acquit!' ":

Internal mp3

Kirk's silly analogy is based on the assumption that any legal standard extending habeas rights to bin Laden (or anyone else for that matter) necessarily means the statute is immoral and worthless. Tell that to the Founding Fathers, who inserted it in our Constitution as a basic human right, even before the Bill of Rights was enacted. From the Supreme Court decision (pdf):

"The Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom."

Just because the man is one of the worst on the planet doesn't mean we shouldn't uphold our oldest and most foundational laws. As Anonymous Liberal writes, "The whole point of due process is to determine whether someone is guilty. It’s the punishment that is supposed to vary depending on the seriousness of the crime, not the process."

And frankly, what is Kirk so afraid of? It's implausible to imagine any jury hearing the challenge of bin Laden and then overturning his detention. The Nation's Chris Hayes clearly articulated this on MSNBC's Countdown last night:

HAYES: I don't actually understand what Giuliani and McCain and Bush and conservatives are so scared of. I mean, let's imagine we got Osama bin Laden in custody and he challenged his detention before a court of law. Do we really think that there's any court that would look at the evidence and say, "Okay, you're free to go, Mr. Bin Laden"? Of course not.

The whole idea of Habeas Corpus is to allow people who have been wrongly imprisoned to bring their case before a court -- an impartial fact-finder. And we know there are people in Guantanamo who probably are there for the wrong reasons and it would mean they could go home to their families.

But in the case of Osama bin Laden it's just ludicrous to imagine that Habeas Corpus would lead to him being released.

Ludicrous, indeed.

Additionally, Rob at Illinois Reason noticed a serious distortion lying under the surface of Kirk's Obama-Osama gaffe. Rob notes that, in the clip, Kirk is essentially suggesting that because Obama is in favor of Habeas Corpus, he wouldn't allow the U.S. government to kill bin Laden if they somehow found him but couldn't adequately detain him. In fact, Obama has made clear that he has no problem with the government taking Osama out, as this AP article reported:

“First of all, I think there is an executive order out on Osama bin Laden’s head,” the Illinois senator said at a news conference. “And if I’m president, and we have the opportunity to capture him, we may not be able to capture him alive.”

Obama’s campaign said he was referring to a classified Memorandum of Notification that President Clinton approved in 1998 - revealed in the 9/11 Commission report - that would allow the CIA to kill bin Laden if capture weren’t feasible.

Here's the transcript of the above exchange:

DON WADE: Barack Obama, in an interview with Jake Tapper on ABC’s Nightline, said that he thought that -- well, why don’t we play the quote. Here’s Barack Obama:

OBAMA (audio clip): What we know is that in previous terrorist attacks, for example the first attack against the World Trade Center, we were able to arrest those responsible, put them on trial. They are currently in U.S. prisons incapacitated.

DON WADE: Now, there are those who criticize that, saying, "Well if you put those people on trial, there’s the rules of discovery, we have to give away all kinds of evidence and stuff so Osama bin Laden learns everything we know and learns how to beat us the next time, like 2001."

ROMA: Yes, in 1993, he found out we were tapping his cell phone calls.

KIRK: Correct. I think that Osama bin Laden is not just a criminal, he’s a target. And you don’t want to confuse the objectives of the United States. Bin Laden is a military target of the United States that our military should kill. And for -- the danger that we have is if somehow he’s captured and we give full court rights to him, you know, you could have a scene like Johnnie Cochran saying, ‘if the headdress doesn’t fit, you must acquit.’ And that would be the wrong answer.