Boumedienne gives individuals the right to demand proof they ARE Enemy combatants; No more.

The Boumediane ruling by the Supreme Court does NOT give enemy combatants special access to the federal courts. All it does is give people arbitrarily swept up by the Bush administration the right to challenge whether they ARE enemy combatants at all. So says conservative law professor Richard Epstein.

My concern with the prisoners held at Guantanamo has been that, in their panic to appear "strong and resolute" after 9/11 the Bush administration has abandoned the Rule of Law and demanded the right of an all powerful "Commander in Chief" to act in an Arbitrary Manner. The fact that so many of the prisoners held at Guantanamo have been shown to not be Enemy Combatants clearly establishes that the Bush administration has, in fact, been acting arbitrarily and has thrown out the Rule of Law as a guiding principle. It seems to me that the danger that a few real and permanent terrorists might actually be released and later be found to attack Americans somewhere is a lot less of a threat to America than having a President who abandons the Rule of Law. The Constitution and democracy cannot exist when the Rule of Law is abandoned. That destroys all of America. At worst, a mistaken judgment on releasing a few individuals who might be terrorists but cannot be proven so is bad, but it does not threaten the core of what America stands for. So far, there is no clear evidence that any Guantanamo detainee has endangered the lives of Americans after being released.

So I applauded the Boumediene ruling. But not being an attorney, I did not understand how absolutely correct legally it was. I was reacting to my firm belief that abandoning the Rule of Law means abandoning democracy in favor of tyranny.

Now I need to thank Professor Richard Epstein for clarifying the law. The complaints against the ruling are primarily that it gives habeas corpus rights routinely to everyone detained by the American military under all circumstances. It does not do that.

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. [Snip]

The six plaintiffs in Boumediene, accused of plotting an attack on the American Embassy in Bosnia, claim they are not [Enemy Combatants. 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.

The key is that every detained individual - anywhere in the world - must have the right to question the evidence and the decision that he is an enemy combatant under the Rule of Law. The evidentiary requirements are not very high.

The President is thus not above the law as he and John Yoo claim. He is bound by the law and must be restrained by it. The President has no right to act in an arbitrary manner. And neither does the current capricious Vice President. That fact is basic to the very existence of the American democratic republic.

[h/t to Kevin Drum.]