Posted May 4, 2011 by Tom Jackson
Updated May 4, 2011 at 02:03 PM
The Jax Files is not a lawyer; nor is it a toll-free number for locating legal services. It barely survived Constitutional Law 301 at the University of Florida.
The Jax Files furthermore concedes, readily, that the following is pure speculation that renders him a candidate for membership in the swelling OBL conspiracy jihad.
Nonetheless: Is it even remotely conceivable that the White House preferred OBL dead and silent over alive and potentially spilling priceless intel because – (OK, here goes) – the moment the al-Qaida kingpin received legal counsel (for prolonged incarceration leading to a military tribunal), his attorney (maybe one from Attorney General Eric Holder’s old firm) would file a habeas petition – that is, demonstrate how OBL is legally held – and mayhem would have ensued.
This is not entirely idle wool-gathering. The U.S. Supreme Court’s last decision regarding Guantanamo Bay detainees held that those imprisoned there had every right to challenge their incarcerations. And then-candidate Barack Obama’s position on the matter was, briefly, an issue in the 2008 campaign. As Sen. John Kerry told the New York Observer:
“The Supreme Court of the United States has ruled that they have those rights—this is not Barack Obama, this is the Supreme Court of the United States. If John McCain were president he’d have to give them those rights. This is a phony argument.”
Given the circumstances under which OBL was located, it becomes an argument with thorns.
Grounds for the challenge? OBL’s seizure would have been fraudulent because the triggering information leading SEALs to him – the nickname of a trusted courier – was coerced using methods no less than the Obama administration ascertained were illegal (rendition, “enhanced” interrogation).
See details in this developing story in the Daily Caller here.
Imagine the administration calling as its star witness the vilified John Yoo, the Bush-era lawyer investigated by Barack Obama’s Justice Department for writing briefs defending aggressive interrogation. Imagine AG Holder being forced to walk back his opinion on waterboarding and secret prisons.
Other oars would have to go in the water. Imagine putting CIA and NSA officials under oath to describe the variety of leads their agencies were pursuing that had no links to the courier, and that OBL’s discovery in Abbottabad remained imminent. Imagine, even if they testified in secret, the ruinous potential for leaks.
If, ultimately, the federal courts ascertained the entire capture operation was fruit from a poisoned tree, we’d have had to turn OBL loose. The alternative – So sorry, we can’t do that; national security and all that – would trigger a constitutional crisis.
Under that messy scenario, it would be far less complicated to order the butcher of 9/11 taken out.
So, is this nutty? Yeah, probably. There were at least 3,000 extremely compelling reasons for a Navy SEAL marksman to put a bullet through the eye of the inspiration for AQ’s 9/11 massacre.
In the alternative, we offer the concept as the framework for a Grisham/Clancy national security legal thriller partnership: International terrorist figurehead, capable of entertaining CIA operatives with identities, locations and favorite haunts of his top lieutenants, is discovered in a remote hideout in Pakistan. But before choppers loaded with a highly trained strike force lift off from their base in Afghanistan, a bunch of former law professors in the White House make a coldly calculated decision to avoid political embarrassment ahead of a re-election campaign.
Who needs a habeas fight? Dead men file no petitions.
But an idealistic SEAL on the team who’s also a Navy lawyer has other ideas.