BOUMEDIENE v. BUSH….Via TalkLeft, conservative law professor Richard Epstein explains something that should be obvious to everyone but apparently isn’t: the Supreme Court decision in Boumediene v. Bush was not about giving habeas corpus rights to enemy combatants. It was about giving prisoners habeas corpus rights to settle the question of whether they’re enemy combatants in the first place:
Enemy prisoners of war are never granted [habeas corpus], 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.
We already know for a fact that a large number of the original Guantánamo detainees weren’t enemy combatants at all. They were swept up by mistake or as a result of longstanding tribal grudges. Given that, it’s not hard to believe that at least some of the remaining prisoners are noncombatants as well.
And it’s worth remembering that the government’s burden of proof here is fairly low. They don’t have to prove that any of the detainees committed any specific act. They merely have to present enough evidence to convince a court that the detainees remaining in Guantánamo are genuine enemy combatants. That’s a pretty minimal showing, and given the government’s actions over the past seven years it’s hardly an unreasonable requirement. Epstein again: “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.”