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

? Civil Liberties, Habeas Corpus, and the War on Terror of Introduction Habeas corpus is perhaps the basis of the legal system for most United States citizens as it provides the citizens with the key constitutional check on random powers of the government and its agencies. It also allows detained suspects to challenge the legality and constitutionality of their arrest and confinement. Unfortunately, according to recent studies, court cases, and cases of suspension of the habeas corpus, this essential aspect of the U.S legal system has not turned out to the crucial check it was expected it to be (Stone, 2004, P. 67). In fact, habeas corpus has proved to be much of a political tool as it is a tool of the law. Generally, habeas corpus is the all-important right the constitution gives to people in the USA; a judicial authorization for prisoners to appear before a court of law for the determination of the legality of their detention by the government. (Doyle, 2006, P. 26) In other terms, such detainees or their representative have the right to petition the court for such summon. Though there are instances when the constitution allows for the suspension of habeas corpus, certain unlawful suspensions have been recorded in the history of the US. A case in which habeas corpus may be constitutionally suspended is during a rebellion or an invasion of public security/safety. Illustrations of the instances in which habeas corpus was suspended include during the fight against the Ku Klux Klan in parts of South Carolina, and during the War on Terror. Current studies on habeas corpus have shifted from the traditional judicial view of habeas corpus to the more recent political view of the subject. In fact, these political views and studies on habeas corpus emphasize the role and effects of the president, the congress, political parties, federal/state governments, legal academics, and interest groups (Fisher, 2003, P. 119). These politically oriented studies, for example, have looked into how political parties and the congress have used and suspended the habeas corpus to establish and enforce their opinions on constitutional governance and to undo the legacies of predecessor congresses and governments. This paper explores the habeas corpus with regards to its meaning, history, and applicability in the war on terror, in the Supreme Court, by the Congress, by the president, its use to protect civil liberties, and its suspension since historical times. The Meaning and the Historical Evolution of Habeas Corpus As mentioned earlier, writ of habeas corpus refers to a legally implementable order by a court of law to a law enforcement or prison official demanding that a detainee be presented before the court for the determination of the lawfulness of the detention/imprisonment (Irons, 1999, P. 13). Habeas corpus thus helps in determining whether a detainee or a prisoner should continue to be detained or imprisoned. The petition must however prove that the detention in question has a legal or factual fault. The right of habeas corpus is thus a constitutional right bestowed on an individual who must show evidences of a wrongful imprisonment in a court of law. Initially, there was a wrong notion that habeas corpus has its origin in the 17th century Magna Charter, which declared that no free man should be imprisoned or have his freedom, liberties, customs banned, exiled, shattered, or shortened without lawful judgment according to the laws of the land or by the judgment of his/her peers (Irons, 1999, P. 19). The origin of habeas corpus in the 17th century has however been disputed by historians who opine that habeas corpus was first recorded in 1305 during the reign of King Edward I of England. In fact, other sources state that habeas corpus first appeared in the 12th century and were issued by King Henry II. The basis of these earlier writs was that the King would be held responsible for any suspension or restraining of citizen’s liberties. The King was also responsible for deciding when such suspension or restrain was to be inflicted. Later in 1679, the English parliament enacted the Habeas Corpus Act 1679, which issued the procedure for issuing a writ of habeas corpus. As in the UK, The issuing of habeas corpus is necessitated by the widespread practice by judicial officials to issue rulings that restrict habeas corpus’ effectiveness. Similar to the earlier times, the highest court of the land issues the writ of habeas corpus and commands lower courts, private people, or law enforcement agencies/personnel to present prisoners before it. In the U.S., a third party or a prisoner could make a habeas corpus petition, implying that notwithstanding whether a court is in session or not, habeas corpus could be presented according to the relevant Acts (Irons, 1999, P. 78). It is noteworthy that the words used in habeas corpus imply that it is the legality of one’s imprisonment or detention that is being determined when an individual is brought before a court of law. The Suspension of and the Applicability Habeas Corpus In the past and current times, instances in which the habeas corpus has been suspended or violated abound. For instance, Abraham Lincoln and George W. Bush suspended habeas corpus during their tenure at the White House. The U.S-manufactured suspensions of habeas corpus have been rather domestically and internationally controversial and hotly debated issues presently and in the past both. In fact, the resultant global outcry against the U.S-manufactured suspension of habeas corpus has not endeared it to the many nations due to the current war against terrorism. On October 17, 2006 President George W. Bush, for instance, signed a law that suspended the right of habeas corpus to individuals determined and described as enemy combatants by the US in the war against terror. This action by President Bush attracted a lot of domestic and international criticism and outcry given that the law did not define who was responsible for determining enemy combatants and who exactly these combatants were. Locally, U.S citizens, more so academicians and popular media decried the act and termed this period a time of shame for the U.S. Worse still, this act by the President and the congress to suspend habeas corpus revoked what had been achieved with regards to U.S values and principles since its independence. Unfortunately, President Bush was not the first and only president to suspend the habeas corpus. In fact, the Military Commissions Act of 2006 by the congress just added to the list of instances in which the habeas corpus right was suspended. Looking back at the days of the U.S. Civil War under President Abraham Lincoln, writs of habeas corpus were grossly suspended. Strangely, both Presidents Bush and Lincoln justified their actions by the dangers of war, and were equally criticized for attacking and mutilating Article I, Section 9-Clause 2 of the U.S Constitution, which asserts that “The privilege of the writ of habeas corpus shall not be suspended, unless in cases of rebellion or invasion the public safety may require it.” (Bandele, 1996, P. 152) By supporting and signing into law the Military Commissions Act of 2006, President Bush suspended the writs of habeas corpus and granted the U.S President nearly unrestricted powers and prerogatives to establish and conduct military commissions, which would try persons under U.S custody considered unlawful enemy combatants. Moreover, the Military Commissions Act 2006 suspended enemy combatants’ rights to present or to have presented for, writs of habeas corpus. Courts, justices, and judges were accordingly suspended from having authority over applications of writs of habeas corpus filed by such detainees or their representatives (Federman, 2006, P. 233). The Act did not however affect the many writs of habeas corpus already presented by or on behalf of unlawful enemy combatants. Similar to Bush’s case, President Lincoln declared martial law and order that the right to writs of habeas corpus be suspended in 1861 after the American Civil War started. In President Lincoln’s time, this suspension, at its initial stages, affected only Maryland and sections of the Midwestern states. Although the then Supreme Court Judge Roger B. Taney disobeyed Lincoln’s suspension orders and granted a writ of habeas corpus for Maryland secessionist John Merryman after his arrest by Union troops, Lincoln and the military ignored Taney's ruling. Taney had demanded that the U.S. Military present Merryman before the Supreme Court. Unfortunately, the situation became more serious on September 24, 1862 when President Lincoln suspended the right to writs of habeas corpus nationwide (Nutting, 1960, P. 249). Like in the case of President Bush, President Lincoln suspended the writ of habeas corpus for all arrested during the rebellion and imprisoned in any military camp, fort, prison, arsenal, or any other military confinement point by the sentence of a court martial or a military commission (Federman, 2006, P. 242). At the end of the Civil War in 1866, the U.S Supreme Court restored habeas corpus and illegalized all military trials for situations in which civilian courts could function effectively. The Supreme Court’s Interpretation In these times of war against terror, quite a number of controversies have surrounded the applicability of habeas corpus, more so in relation to how the Supreme Court interprets the right of habeas corpus. An example of a case in which the Supreme Court had to interpret habeas corpus is the Boumediene versus Bush, 553 U.S. 723 (2008). This case was a writ of habeas corpus petition in a US civilian court on behalf of Lakhdar Boumediene, a naturalized citizen of Bosnia and Herzegovina. Boumediene was detained at the Guantanamo Bay detention camp in Cuba in which the U.S has full jurisdiction and control. This case challenged the legality and the constitutionality of Boumediene's detention at the camp and that of the Military Commissions Act (MCA) of 2006. The Supreme Court heard the case’s oral arguments on December 5, 2007 with a 5-4 majority being delivered by Justice Kennedy on June 12, 2008. According to the 5-4 majority opinion, the prisoner had a right to the habeas corpus under the US Constitution and further stated that the Military Commissions Act of 2006 was unconstitutional since it suspended the right of habeas corpus. Since the U.S had complete control and jurisdiction over the Guantanamo Bay camps, it had de facto sovereignty over it and thus by detaining enemy combatants in these camps, it had to provide for and protect their right of habeas corpus as provided for in Article I, Section 9 of the U.S. Constitution. The Supreme Court is thus quite instrumental in interpreting the habeas corpus since in this particular case, the lower court had explicitly pointed out that the Guantanamo Bay detainees had no constitutional rights, let alone the right to habeas (Seghetti & James, 2006, P. 134). In fact, the lower court had entirely rejected the petitioner’s arguments. Luckily, the U.S Supreme Court opined that all the fundamental and constitutional rights to U.S citizens extended to the Guantanamo detainees too. Conclusion An evaluation of past and present interpretations and perspectives on the issue of habeas corpus reveals that presidents, congresses, politicians, political parties, and government agencies and branches have continued to deny individuals, more so those detained in military camps their right to habeas corpus. As seen in the cases of Presidents Lincoln and Bush, it is evident that habeas corpus has been suspended and mutilated in current and past times. Nonetheless, criticisms from the political class, academics, and the media have proved helpful in ensuring that the right of habeas corpus, as provided for in the Constitution has been upheld. Particularly instrumental in ensuring this right is provided and protected is the Supreme Court. In the two highlighted cases of the suspension of habeas corpus, the intervention of the Supreme Court is rather obvious and its role cannot thus be overemphasized. Although during the Civil War President Lincoln and the military ignored Judge Taney, recent enlightenment has supported the Supreme Court to execute its mandate and declare the Military Commissions Act 2006 and the arbitrary detention of unlawful enemy combatants illegal and unconstitutional. In future, presidents, congresses, academicians, government agencies, civil rights groups, and popular media should be in the forefront in ensuring that peoples’ rights of habeas corpus ate provided and protected. These groups and individuals should be aware of the instances in which the right of habeas corpus should be suspended, more so during rebellion, and public safety/security. The Supreme Court and the lower courts should be particularly vigilant to ensure that the government and the political class do not infringe of peoples’ constitutional rights and liberties such as the habeas corpus. In fact, a philosophy or attitude in which the constitution is considered supreme over other laws that could merely be serving political or personal interests should be adopted in the U.S legal system. Even as national security becomes a great a concern for the government, attention should be paid to citizens’ rights and freedoms as provided for in the constitution. References Bandele, A. (1996) Habeas corpus is a legal entitlement, a poem in absence in the palms of my hands & other poems. New York: Harlem River Press. Doyle, C. (2006). Federal habeas corpus: a brief legal overview. Congressional Research Service. Federman, C. (2006). The body and the state: habeas corpus and American jurisprudence. SUNY. Fisher, L. (2003). Nazi saboteurs on trial: a military tribunal and American law. University Press of Kansas. Irons, P. (1999). A people's history of the Supreme Court. Viking. Nutting, H. A. (1960). The Most Wholesome Law—the Habeas Corpus Act of 1679. The American Historical Review, 65(3), 543. Seghetti, L. M., and James, N. (2006). Federal habeas corpus relief: background, legislation, and issues. Congressional Research Service. Stone, G. R. (2004). Perilous times, free speech in wartime from the sedition act to the war on terrorism. Norton. Read More