Legal Commentary

Epstein On Habeas And Boumediene

By Big Tent Democrat

Richard Epstein does not often write things I agree with but he did today about the Boumediene decision, where he echoes my consistent critique of the DC district court and DC circuit court decisions:

Enemy prisoners of war are never granted [habeas], 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.

(Emphasis supplied.) Precisely.

Full post as published by TalkLeft on June 22, 2008 (boomark / email).