The Right of Habeas Corpus and the War on Terror essay

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Prior to the tragedy of September 11, 2001, habeas corpus rarely featured in legal disputes in the USA. The right of habeas corpus has gained ground ever since and has been a serious debate topic. With the inception of the Guantanamo facility, several pertinent questions came up concerning the extent of the presidential powers as the commander-in-chief and the role played by congress in the determination of situations in which habeas corpus could be suspended. Additionally, the Supreme Court’s role in protecting the citizen’s civil liberties has also been put on the spotlight.

The paper will discuss the historical progression of habeas corpus and its relevance to the current situation on the war on terror. The discussion will also focus on examples in the United States history that features the suspension to the right of habeas corpus. Furthermore, the paper discusses the interpretation of the Supreme Court on the right of habeas corpus in relation to those determined to be enemy combatants or illegal combatants.

Habeas corpus refers to a legal writ or action which can be invoked by a prisoner in a court of law before a judge to question their incarceration. In the American context, the law provides the right to initiate a petition for a writ of habeas corpus in any federal court. Each state can also allow a petition to its judicial courts for a habeas corpus writ. This is in line with the states’ own constitution when the individual becomes sentenced and incarcerated by authorities from that state (Maidman, Curhan & Massachusetts Continuing Legal Education Inc., 1982).

 The U.S constitution in Article 1, Section 9, and Clause 2 enshrine the right to invoke the habeas corpus. It states that, under no circumstance shall one be denied the right of habeas corpus unless it is in a case of rebellion or invasion where the public’s safety appears threatened. The United States law gives an individual the right to put forward a petition to any of its federal courts for writ of a habeas corpus. When an individual invokes the right of habeas corpus, the government has to respond.

The habeas corpus has had a long historical evolution that can be traced back to medieval England. The term, habeas corpus,’ originated from medieval England. Initially, the habeas corpus served as a tool of law for issuing subpoenas. Normally, the king’s, officials or the nobles invoked it in order to compel a person to come forward and testify in a given case. Over time, the role of habeas corpus morphed. By 1679, when the Habeas Corpus Act of England came into force, it was an accepted civil right. As a result, it served to protect the citizens from arbitrary arrests and incarceration (Great Britain, & Somers, 1757).

The United States federal law has the mandate to review the right of habeas corpus. For over a hundred years, the habeas corpus writ did not include prisoners in the custody of the state during the civil war, the reconstruction and the current war on terrorism caused significant limitations to individuals considered as enemy combatants or illegal combatants. The implementation of the Reconstruction Act expanded the mandate of the federal court to include individuals in US custody. In effect, the Reconstruction Act expanded the writ to all those incarcerated on the United States soil.  

There are several instances in history where suspension of the right to habeas corpus is evident. During the civil war, both the president and the congress suspended the habeas corpus. On April 27, 1861, President Abraham Lincoln curtailed the writ of habeas corpus in the state of Maryland.  Rampant riots and militia action from the state resulted in the suspension of habeas corpus. Additionally, there was the looming threat that Maryland would have seceded from the union. A court petition challenged the presidential suspension, overturning the earlier decision.

In December 1862, the House of Representatives passed a bill indemnifying the president for suspending the right. The senate then altered the bill so as to remove the indemnity on the president and consequently transferring the suspension of habeas corpus onto congress itself. In March 3, 1863, the Habeas Corpus Suspension Act became law. In direct exercise of presidential power, President Lincoln, in September 1863, suspended the right to habeas corpus across the entire union.  It was not until December, 1, 1865; President Andrew Johnson lifted the suspension. After the civil war had ceased, there was a massive influx in anti-reconstruction groups such as the Ku Klux Klan. The congress retaliated by passing the Force Acts in 1870-1871 (Sears, 2012). This act arbitrarily suspended the writ over those found engaging in such activities considered anti-reconstruction by the government.

The November 13, 2001, Presidential Military Order, empowered the president to detain any foreigner or non-citizen suspected of having any links with terrorists or terrorism arbitrarily (Edwards, & Ferstman, 2010). Furthermore, anyone classified as enemy combatants would fall into this category and could be detained. As though in cue to reinforce the Presidential Military Order, on May 29, 2006, the U.S House alongside the Senate passed the Military Commissions Act. This act, suspended the writ to habeas corpus to any person who determined to be an “unlawful combatant” or “illegal combatant,” by the United States government.

On 7th June 2007, the Senate Judiciary Committee approved the Habeas Corpus Restoration Act of 2007. The act sought to restore the right of habeas corpus to all individuals declared illegal combatants and those detained as enemy combatants. On January 21, 2009, President Barack Obama exercised his presidential powers by issuing an executive order on those held arbitrarily and indefinitely in the Guantanamo facility. The executive order confirmed that individuals and all others under the custody of the United States government had the constitutional right to be issued with a writ of the habeas corpus.

The most controversial case that involved the right to habeas corpus is the Boumediene v Bush case of 2007. The case was an exclusive petition in a civilian, American court of the writ of habeas corpus. It was on behalf of Lakhdor Boumediene against the Bush administration. Boumediene was one of the individuals incarcerated at the Guantanamo Bay Naval facility (Hafetz, 2011). December 2007 was the submission of the oral arguments about the case, and the landmark decision reached by the judges on June 12th, 2008. The case had a 5-4 majority. This was a crucial split in the judges’ decision. Justice Kennedy delivered the opinion. It held that, under the US constitution, the prisoners had a right to forward a request for a writ of habeas corpus. Additionally, they found out that the MCA was unconstitutional in its state as it arbitrarily suspended a fundamental constitutional right (Federman, 2007).

The majority decisions that concurred with the opinion were those of Justices Kennedy, Breyer, Souter and Ginsberg. According to Justice Kennedy, the majority concurred that the habeas corpus review is a constitutional guarantee and that it also encompassed all those held in detention at the Guantanamo facility. In Justice Souter’s concurrence, he alluded to the Rasul v Bush to help the Supreme Court make a conclusion.

On the other hand, Justices Thomas, Chief Justice Roberts along with justice Alito seconded Justice Scalia’s dissent. The Detainee Treatment Ac Their argument was the basis of their argument. According to the judges, the act provided sufficient guarantees that had not been violated during the defendant’s incarceration at Guantanamo. Consequently, they found out that there was no basis for the intervention of the judiciary into the matter beyond that which the act contains. Despite the split in the judges’ decision, the defendant won the case and gained his freedom along with other beneficiaries of the case incarcerated under similar circumstances (Vaughan, 2011).

From the discussion, the extent of the applicability of the writ of habeas corpus can be determined by various factors. As is evident, the execution of presidential powers as commander in chief is particularly crucial in determining the implementation and the extent of application of the writ. In 2009, President Barack Obama ratified the Military Commissions Act of 2009, an amendment to the MCA of 2006 (Claeys, 2010).

Additionally, the congress plays a fundamental role in determining the various instances that the writ can be suspended, especially in times of disaster or when there is concern over the admissibility of the writ to a group of individuals. In this case, individuals classified as suspects of terrorism or illegal combatants.

From the Boumediene v Bush case, it is evident that the Supreme Court serves to protect the civil liberties of all individuals. These individuals should be recognized by the United States constitution as citizens of the US or in the custody of the US government. Furthermore, whether on US soil or abroad in areas under US jurisdiction. It is from the landmark decision arrived at during the case that presented the detainees at Guantanamo a reprieve from the indefinite imprisonment without any judicial intervention. Despite the progress made in unraveling the challenges that come with the execution of the writ, the debate is still far from over with the ever increasing threats in terrorism

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