Ruminations of an Expatriate

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Monday, June 23rd, 2008...9:11 am

Richard Epstein on Boumediene v. Bush

“Richard A. Epstein ….. a law professor at the University of Chicago and a senior fellow at the Hoover Institution” explains in a New York Times opinion piece why the Supreme Court was correct in its Boumediene v. Bush decision determining that Guantanamo prisoners are included in the Constitution’s habeas corpus guarantee.

Nothing in the suspension clause distinguishes citizens from aliens. Likewise, the due process clause extends its constitutional protections to all “persons,” citizens and aliens alike. If the conditions for suspending habeas corpus are identical for citizen and alien, so too should be the conditions for applying it. If citizens overseas are entitled to habeas corpus, so are aliens. Viewed this way, the court did not need to decide whether or not Guantánamo was American territory. Its ambiguous status no longer matters. Eisentrager disappears on originalist grounds.

Overruling Eisentrager on this point would not routinely entitle everyone to habeas corpus all the time. Enemy prisoners of war are never granted it, either in the United States or abroad. What matters is whether a prisoner is or is not an enemy combatant.

The defendants in Eisentrager, German war criminals, admitted being enemy combatants. The six plaintiffs in Boumediene, accused of plotting an attack on the American Embassy in Bosnia, claim they are not. They should be entitled to challenge both the government’s definition of an enemy combatant and the factual basis of their arrest. And they should be able to do so, as the court stressed, under standard habeas corpus procedures that allow them to present evidence and confront witnesses, and not under the paltry procedures outlined by the 2006 Military Commissions Act.

If found to be enemy combatants, they can be held for the duration of the war and interrogated, if desired, as any other detainees. If not, they must be tried for some particular offense or released.

The defendants’ entire case would collapse if the Bush administration were prepared to offer substantial evidence of their enemy combatant status, sparing everyone unneeded uncertainty and expense. Boumediene v. Bush is not a license to allow hardened terrorists to go free. It is a rejection of the alarmist view that our fragile geopolitical position requires abandoning our commitment to preventing Star Chamber proceedings that result in arbitrary incarceration.

I gratuitously note that in my A Victory for Habeas Corpus post I noted:

Notice that the Constitution’s language, clear enough one might think for those who hold themselves out as strict constructionists, establishes no limitations as to the [Habeas Corpus] guarantee related to one’s nationality or one’s location.

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