Civil Liberties, Habeas Corpus, and the War on Terror - Research Paper Example

? Civil Liberties, Habeas Corpus, and the War on Terror Civil Liberties, Habeas Corpus, and the War on TerrorIntroduction Written in 1787, the Constitution of the United States particularly incorporated the writ of habeas corpus as a fundamental right of individuals and a legal foundation of the new country. Habeas corpus is a primordial common law privilege writ under which an individual has undeniable right. It is actually an extraordinary remedy at law. The request for granting of a writ of habeas corpus is forwarded to a judge and if accepted, a prisoner must be presented before the judge. The writ of habeas corpus demands that a prisoner be presented by whoever is holding him or her before the judge at the judge’s request. The writ of habeas corpus is an absolute protector of human rights threatened by wrongful detention and incarceration. As such, it was a strategy through which the founders of the nation promoted the separation of powers and maintenance of equilibrium between them. The writ of habeas corpus can be traced back to the English common law that checked on the excesses of the government against human rights. In the United States, the writ of habeas corpus has been questioned by various Presidents from Lincoln to Bush regime portraying elements of abuse of power. This paper explores the writ of habeas corpus in the context of war on terror and also explores if the move by the president is aimed at protecting the citizens or if it points to abuse of power because the president is the commander in chief. The Historical Evolution of Habeas Corpus English History of Habeas Corpus Habeas corpus has an ancient English history and seems to have predominantly originated from Anglo-Saxon common law (The Rutherford Institute, 2013). According to Shaw (2009), “Habeas corpus is an ancient remedy whose original purpose was to contest detention by the king” (Shaw, 2009, Para 7). The origins of the writ, whose Latin meaning is “produce the body”, can be traced back to thirteenth-century England (Shaw, 2009). “On June 15, 1215, at Runnymede, in a meadow beside the Thames west of London, the English barons who had banded together to impose legal restrictions on the power of King John forced him to affix his seal to the Magna Carta. One of its curbs on the sovereign’s power reads, in part, ‘No free man shall be seized or imprisoned…except by the lawful judgment of his equals or by the law of the land’” (Shaw, 2009, Para 7). The law in question was “The Great Writ” from which habeas corpus descended. The enforcement of habeas corpus became predominant during the time of Magna Carta and formed an essential component of the unwritten common law, which were expressly accepted. The Act of habeas corpus in the English law was enacted by the Parliament in 1679 (Rudolph, 2013). The English courts were empowered by this historic Act. As a consequence of the Act, the courts could now issue Writs of Habeas Corpus irrespective of whether the courts were in session or not. Despite being riddled with high levels of hypocrisy in 17th century, Habeas Corpus Act established itself as a major empowerment tool for human liberty in countering excessive exercise of power by the state. The writ of habeas corpus was expanded during 19th century to include individuals held by exclusive private processes other than the state (Rudolph, 2013). American Development of Habeas Corpus By the time Revolutionary War was taking place in America, the Writ of Habeas Corpus was already established in all the colonies of Britain and was perceived as a fundamental legal protection of civil liberties of citizens. In Article I, Section 9 of the Constitution of the United States, it is stated that “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” (Shaw, 2009, Para 7). Despite the fact that other common-law writs were recognized in the British Empire, only the writ of habeas corpus gained entry into the constitution of the United States. The other crucial individual rights were incorporated as Bill of Rights in the initial ten amendments. Article 1, Section 9 also states that: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Case of Rebellion or Invasion the public Safety may require it” (Robertson, n.d, Para 6). In 1791, James Madison successfully argued before the Congress for the adoption and ratification of Bill of Rights two years after the enactment of the constitution (Robertson, n.d). The Enforcement of Habeas Corpus in the Untied States The case of Ex parte Dred Scott, a physician-owned slave, is the most popular American Habeas Corpus action before the civil war (Robertson, n.d). Scott was promised that he would be granted freedom upon the demise of his master. However, while still under confinement as a slave, Scott appealed for a Writ of Habeas Corpus with the Federal Court. The Federal District Court granted him with Habeas Corpus, which the Federal Court of Appeals later upheld. Absurdly, the granted Habeas Corpus was later reversed by the United States Supreme Court under the claim that Dred Scott was not a “person” as defined in the Constitution of the United States. As such, it was argued that Scott had no right file a petition for a Writ of Habeas Corpus with the Federal Courts (Robertson, n.d). The suspension of petition for a Writ of Habeas Corpus by Scott remains one of the most contentious Habeas Corpus cases in the United Sates to date. During the American civil war in 1861, President Lincoln suspended the Writ of Habeas Corpus (Dueholm, 2008). President Lincoln and the country’s armed forces ignored the ruing of the Supreme Court during the civil war. In 1863, the Congress approved the action of the President to suspend the writ of habeas corpus (Shackelford, 2009). Following the 1863 ratification by the Congress, the military was empowered to hold people temporarily before they were presented to civil courts (Dueholm, 2008). After the execution of President Lincoln, the Supreme Court of the United States once again granted the writ of Habeas Corpus in Ex parte Milligan’s case on the basis that only the Congress was bestowed with the power to suspend the writ (Bradley, 2008). The Supreme Court also asserted that the military had no authority to try civilians after the civil war (Bradley, 2008; French, 2002). Other suspensions include that in the Philippines following the Spanish-American War and in Hawaii during the Second World War, after the Pearl Harbor bombing (Robertson, n.d). The Writ of Habeas Corpus has been used in both English and the U.s to leverage one government institution against another (Shackelford, 2009). The tussle between different branches of the government can be witnessed in the latest Habeas Corpus case at the Supreme Court- Boumediene v. Bush (Shackelford, 2009). According to Shackelford (2009), the main issues in Boumediene v. Bush case “was whether aliens designated as enemy combatants should be able to challenge their detention through the writ of habeas corpus” (Shackelford, 2009, p. 677). The Supreme Court conclusion was that the suspension of the Writ of Habeas Corpus is only possible in cases of invasion or rebellion (Shackelford, 2009). According to the interpretation of the Supreme Court, the suspension “protects ‘a time-tested device, the writ’ and that protection is intended ‘to maintain the delicate balance of governance’ between the executive branch and the judiciary” (Shackelford, 2009, p.678). A majority of the Judges in Boumediene v. Bush case established that courts are stripped of the jurisdiction to review the correctness of incarceration “other than by procedures established in the Detainee Treatment Act of 2005” (Shackelford, 2009, p.678). Despite the fact that the Constitution of the United States recognizes the Writ of Habeas Corpus as a fundamental right of individuals, its application has been under fire since the time of civil wars. After the 9/11 terrorist attack on the United States, one would question if the writ of Habeas Corpus applies to Parhat and other suspected terrorists held at Guantanamo. Following the attack, President Bush made several attempts to revoke the Writ of Habeas Corpus (The Rutherford Institute, 2013). He denied Habeas Corpus appeals to the detainees at Guantanamo Bay, trying by all means to confer to himself the power to suspend the Writ of Habeas Corpus to every citizen of the United States. Different Perspectives on the Writ of Habeas Corpus, Civil Liberties and War on Terror When President Lincoln suspended the Writ of Habeas Corpus in 1861, it appeared that he had abused his presidential power by suspending the writ of habeas corpus. This can be seen in the remarks of Chief Justice Roger Tanney, in the case of Ex parte Merryman (Robertson, n.d). According to Chief Justice Roger Tanney, only the Congress and not the President had the power to suspend the writ as contained in Article 1, Section 9 of the Constitution of the United States (Shackelford, 2009). According to Daniel Meltzer, Story law professor, habeas corpus review by courts can be suspended in periods of crisis (Robertson, n.d). However, professor Meltzer does not expressly say who qualifies to suspend the Writ of Habeas Corpus. Daniel Farber, Berkeley’s Boalt Hall School of Law, notes that “Lincoln was not arguing for legal power to take emergency actions contrary to statutory or constitutional mandates” (Robertson, n.d, Para 16). In his view, the president could suspend the Writ of Habeas Corpus provided that he was acting in a situation of emergency and the congress had the option to ratify his actions. According to Justice Kennedy, the president has no power to unilaterally suspend the Writ (Shackelford, 2009). If this were to happen, Justice Kennedy’s opinion is that the U.S would be a country where the Congress and the President, but not the courts decide the law. Personal Philosophy and Values on Balance between Civil Liberties and National Security Peaceful environment where human rights are observed makes a country the best place to live in. the Writ of Habeas Corpus is an important human right protection tool that should be observed. However, in the event of crisis and in the present world overflowing with terrorism, it is in the best interest that the president and the military of the country ignore the Writ of habeas corpus. National security is an important factor that should come before any other thing. The detentions of prisoners at Guantanamo Bay are preventive measure that helps the country’s security system to keep dangerous criminals from disturbing the peace of innocent citizens. As long as the Suspension of the Writ of Habeas Corpus is aimed at taming terrorism and improving national security, the president and the military should be let to do what they think best to guarantee safety to American people. Conclusion The Writ of Habeas Corpus is an ancient principle of the English common law that was incorporated in the Constitution of the United States in the post colonial period because of its importance. The Writ of Habeas Corpus is found in article I, Section 9 of the Constitution of the United States. The Writ of Habeas Corpus basically requires the person or institution holding a prisoner to produce him or her before a judge concerned with the appeal. In the United States, the application of the Writ of Habeas Corpus has an interesting history, especially in the case of Dred Scott, a physician-owned slave, who was denied the appeal for not being a “person” under the Constitution of the United States. In the history of United States, the Writ has been suspended four times with the suspension by President Abraham Lincoln being the most ridiculous and attracting the wrath of the Supreme Court Judges. References Bradley, C.A. (2008).The Story of Ex parte Milligan: Military Trials, Enemy Combats, and Congressional Authorization. Retrieved on November 9, 2013 from https://webspace.utexas.edu/rmc2289/National%20Security%20and%20the%20Courts/bradley.paper.pdf Dueholm, J.A. (2008). Lincoln's Suspension of the Writ of Habeas Corpus: An Historical and Constitutional Analysis. Journal of the Association, 29(2). Retrieved on November 9, 2013 from http://quod.lib.umich.edu/j/jala/2629860.0029.205?rgn=main;view=fulltext French, A.E. (2002). Trials in Times of War: Do the Bush Military Commissions Sacrifice Our Freedoms? OHIO STATE LAW JOURNAL, 63:1225. Robertson, J.D. (n.d). HABEAS CORPUS THE MOST EXTRAORDINARY WRIT. Retrieved on November 9, 2013 from http://www.habeascorpus.net/hcwrit.html Rudolph, J. (2013). Common law and Enlightenment in England, 1689-1750.UK: The Boydell Press. Shackelford, S.J. (2009).Habeas Corpus Writ of Liberty, Boumediene and Beyond. Cleveland State Law Review, 57(3):671-681. Shaw, J. (2009).The War and the Writ: Habeas corpus and security in an age of terrorism. Retrieved on November 9, 2013 from http://www.law.harvard.edu/news/spotlight/terrorism-and-national-security/habeas-corpus.html The Rutherford Institute (2013). Habeas Corpus. Retrieved on November 9, 2013 from https://www.rutherford.org/constitutional_corner/habeas_corpus/ Read More