Epstein On Habeas And Boumediene

By Big Tent Democrat, Section Constitution
Posted on Sun Jun 22, 2008 at 01:44:25 PM EST
Tags: (all tags)

Share This: Digg!

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.

< DNA Exonerates Another TX Defendant | Dropping a Google Bomb on McCain >

Legal

Nothing on this site should be construed as legal advice. TalkLeft does not give legal advice.

TalkLeft is not responsible for and often disagrees with material posted in the comments section. Read at your own risk.

Epstein On Habeas And Boumediene | 8 comments (8 topical)

Readers Must Login or Create an Account to Comment

heh (1.00 / 0) (#8)
by jimakaPPJ on Mon Jun 23, 2008 at 09:04:15 AM EST

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.

Of course they have already done that in their
Combatant Status Review Tribunals.

Is their light at the end of the tunnel? (none / 0) (#1)
by PssttCmere08 on Sun Jun 22, 2008 at 01:47:32 PM EST

: Only to the Degree (5.00 / 0) (#3)
by The Maven on Sun Jun 22, 2008 at 04:59:29 PM EST

that it's not completely and utterly dark. Extinguishing the last remaining flicker of hope that our Constitution -- and the rule of law generally -- might prevail is of course exactly what the Bush Administration had hoped for, and they came frighteningly close this time to getting their wish.
The fact that the habeas conflicts alone have been unresolved for several years is itself testament to the absurdity of the Administration's handling of the whole detainee issue. Frankly, until January 20, 2009, that light at the end of the tunnel will remain very, very faint.
We'll have to see how things play out over the next few months in the run-up to the now re-rescheduled tribunals, which the Administration is determined to hold before the elections, SCOTUS ruling or no SCOTUS ruling.

: Hopefully (none / 0) (#2)
by A DC Wonk on Sun Jun 22, 2008 at 04:49:58 PM EST

We've had the GOP appointing judges (not just to SCOTUS, but all over the federal judiciary) for 20 of the last 28 years.
If John "I think Roe v Wade was wrong" McSame can be defeated, there will be some light at the end of the tunnel.

Can someone answer my question. (none / 0) (#4)
by Saul on Sun Jun 22, 2008 at 07:43:44 PM EST

Why was 911 seen as an attack or invasion from another country. My understanding of a country attacking another country is that the government of that country is behind it and sanctioned the attack and order their military troops to attack that country.

If you have some independent wackos or soldiers of fortune attacking a country, then to me their actions should be considered a crime and the crime should be handled by the state and federal police not the U.S Military. None of the 911 people were from Iraq, they were all from Arabia. Yes they were independent guys that just hated the U.S. and decided to do something about it. It was not condone by the Arabian government, or the Afghanistan government because Osama Bin Laden was not the leader of Afghanistan. He was just an outcast from his family hiding out in the caves of Afghanistan. .

If you wanted to use the logic that you had a right to attack the country of origin of the attackers then why did you not attack Arabia?

The attack of Oklahoma was handled by the police and FBI not the military. Why because it was a crime done by an independent.

If the 911 attackers were all from Canada or Mexico would we have attacked Canada and Mexico liked we attacked Iraq whose government by the way have been shown to had nothing to do with 911?

Why was 911 not treated just like a crime rather than as invasion from another country.
Anybody got a good answer?

: Easy (5.00 / 1) (#5)
by squeaky on Sun Jun 22, 2008 at 08:21:47 PM EST

Why was 911 not treated just like a crime rather than as invasion from another country.
Because then BushCo would have not have benefited at all. It would have been a routine criminal investigation. We would not have the Patriot act, Gitmo, Torture, Secret renditions, Iraq Invasion, Homeland security, Illegal wiretapping, Outing of Valerie Plame, Niger Docs, Oil crisis, Trillion dollar deficit, etc.... and all the trappings that PNAC fancied in order set BushCo up as the most powerful American President of all time.
BTW- Odd that the PNAC site is no longer operational. Must be that McSame does not want to be seen as more of the same.

: Because it was a planned and organized (1.00 / 0) (#7)
by jimakaPPJ on Mon Jun 23, 2008 at 08:59:41 AM EST

attack by a group of radical terrorists supported by nation states.

Human beings can't be made to be (none / 0) (#6)
by MissBrainerd on Sun Jun 22, 2008 at 08:35:38 PM EST

non=persons, not POWs, not suspects or criminals, they are something else defined by one man? the Court said no, there has to be rational path to challenging detention.

I just don't know how people can have so little regard for a fellow human being. And what is wrong with REPS that it is always THEM?