Epstein on Boumedene

this is a sharp defense of the Supreme Court's recent decision but I find some parts of it unconvincing. I do like the idea that the key issue is whether the detainee is an enemy combatant and not whether they have committed a particular act. Why that determination should be in the hands of our domestic courts, however, is not explained.

LAST week’s Supreme Court decision in Boumediene v. Bush settled a key
constitutional issue: all prisoners detained at Guantánamo Bay are
constitutionally entitled to bring habeas corpus in federal court to
challenge the legality of their detention.

This 5-4 decision was correct. The conservative justices in the
minority were wrong to suggest that the decision constitutes reckless
judicial intervention in military matters that the Constitution
reserves exclusively for Congress and the president. (Disclosure: I
joined in a friend-of-the-court brief filed on the plaintiff’s behalf.)

This seems a rather glib statement in that there is virtually no record in the english speaking world or enemy combatants captured by the military being granted habeas corpus rights. Even the German spies caught on our soil were handed over to the military without much ado.

Yet Boumediene is rich in constitutional ironies. In addressing
whether non-Americans detained outside the United States are entitled
to habeas corpus, the court passed up an opportunity to clarify the
law, and instead based its reasoning, flimsily, on a habeas corpus case
that was decided just after World War II. This is too bad, because
issues as important as habeas corpus should turn not on fancy
intellectual footwork but on a candid appraisal of the relevant facts
and legal principles.

At the core of the dispute in Boumediene
is the Constitution’s suspension clause: “The privilege of the writ of
habeas corpus shall not be suspended, unless when in cases of rebellion
or invasion the public safety may require it.” Unfortunately, the text
neglects to specify the grounds for granting habeas corpus. And
historical precedent is inconclusive on the question of when it should
be available to aliens held in American custody outside the United
States.

A lot could be said here but first of all and most importantly, how is precedent unclear on when the Habeas corpus should apply to aliens held outside the US? Maybe the Constitution didn't bother to specify when it applies because they thought it was too bloody obvious to have to mention.

In Johnson v. Eisentrager, in 1950, a case involving illegal German
combatants from World War II, the court held that citizens could bring
habeas corpus whether they were detained in the United States or
abroad. Aliens, on the other hand, had the right only if they were
detained within the United States. In writing the Eisentrager decision,
Justice Robert Jackson mentioned the practical and financial
difficulties of prosecuting enemy aliens overseas, but gave them little
weight.

Now, in his majority opinion in Boumediene, Justice
Anthony M. Kennedy has made that minor issue in Eisentrager into a key
element of the case, acknowledging that the government may have to go
to some trouble, and expense, to ensure that the prisoners at
Guantánamo are able to challenge their detentions. Boumediene need not
have rested on this sleight of hand.

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.

But isn't the reason that citizens have habeas corpus rights outside the US when they are held by the US government because they are eventually going to be brought to trial in the US? Just because I take my rights and responsibilities as an American citizen with me when I leave the US does not mean that those rights and responsibilities automatically extend to everyone else in the world. The government can tax both citizens and aliens when they are in the US and tax citizens when they are abroad; does that mean it can tax aliens abroad?The whole idea of citizenship having specific and exclusive rights and privileges is under attack by cosmopolitan intellectuals.

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.

Here I could not agree more. I think this is a key and important intellectual contribution.

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.

Here the jump is made to this determination of being a combatant being made by domestic courts or at least courts operating by domestic standards. Two problems: those standards, including confronting witnesses, open court, presumably chain of evidence requirements would all be death to an intelligence operation, moreover, how is this the court's business to decide? If there is one thing that is pretty clear in the Constitution it is the Congress and the executive branch's monopoly over war making.

the star chamber rhetoric is out of place. the problem with the star chamber proceedings were that they made domestic dissenters their target. In war great masses of people are killed by what amounts to star chamber proceedings. why be inconsistent? If the courts are going to decide who can be held why should they be silent on who can be killed? why aren't courts deciding where we can bomb and when we can go to war in the first place?

But I get behind myself. More and more they already are.

Here are some more sensible arguments from Andrew McBride. It reminds me of a class I had where a student, a conservative who was assigned taking the liberal side in the Hamdi case, found himself backed into the absurd position of defending the rights of German POWs captured in WWII to habeas corpus. I remember us all admiring his ability to defend the proposition with a straight face. Yesterday's reductio absurdum is today's brave advance for civil rights.

Also check out professor Bainbridge's discussion of Epstein.