Habeas Corpus in the War on Terror - Essay Example

The right of habeas corpus in the context of the war on terror The right of habeas corpus in the context of the war on terror Introduction This paper is an inquiry into the historical evolution of the right of habeas corpus in the U.S. and suspension of the right on various occasions for reasons of war. This paper seeks to establish that habeas corpus right is a universal right available to persons regardless of nationality even in war times. History of evolution of Habeas Corpus UK context History of the writ of ‘habeas corpus’ can be traced to the early thirteenth century when the term was quite common as a language of civil procedure suggesting that it must have developed much earlier. The term ‘habeas corpus’ represents a judicial command to the executive to bring the defendant physically before the court pursuant to an action. There had been no requirement of producing the body of the person with the cause of detention which never had been the case before. It was only for ordering an officer to produce the defendant and not for the purpose of scrutinizing the cause of detention by the court. There has been a mistaken impression that habeas corpus had been originally for the purpose of bringing people to custody and not to set them free. Actually, it was not for making arrest but to ensure the physical presence of a person to the court on the appointed day. However, the use of habeas corpus was not originally associated with liberty and it was a procedural requirement by which courts used to insist on the presence of the person to decide the matter relating to him. It was only with the enactment of Habeas Corpus Act 1640 that power of detention by the king was removed and abolition of all conciliar courts including Star Chamber was made. It was for the specific purpose of availing the right of habeas corpus by the detained persons requiring the King or Council to produce them before the court without delay and with a statement for reasons of imprisonment. The court was required to pronounce its verdict about the legality of the detention within three days and grant bail, discharge or remand the arrestee as it thought fit. A judge failing in this regard was liable to pay fines and damages to the aggrieved party. As the Habeas Corpus Act 1640 was not effective and the judges were not bold enough to contradict the king’s power of detention, the Habeas Corpus Act was 1679 was enacted. This Act was applicable to only criminal cases. This enactment marked the emergence of writ in its modern form (Zellick, Farbey, Sharpe, & Simon, 2011). Thus, the writ of habeas corpus has been an instrument against the unlimited executive power of detention first in England and then in the United States for 800 years from 1219 till this day (Walker, 2009). The 39th clause of the Magna Carta executed by King John in 1215 states that no person should be “arrested or imprisoned except by lawful judgment of his peers or by the law of the land” (Farrel & Rohde, 2010, p. 1). From the years 1500 to 1800, the Court of King’s Bench had released only 53 % of habeas corpus petitioners as found from an analysis of 2757 prisoners out of 11,000 habeas corpus pleas. It shows that even in the earlier days habeas corpus right had been suspended in times of war and civil war. England enacted several laws suspending habeas corpus right during the outbreak of war with France in 1793 that lasted until 1815 by widening the definitions of treason, seditious libel, and made different kinds of public assembly and political association illegal. Halliday states that instead of serving the original purpose, the right of habeas corpus was “shackled and collapsed” (Farrel & Rohde, 2010, p. 1) with no resemblance of the apparent remedy 100 years earlier when it was an equally troubled period which saw 80 % prisoners detained for treason and seditious libel being set free on habeas corpus plea. Halliday agrees with critics like John Lilburne and Granville Sharp that habeas corpus is meant to protect liberty and dissent. Lilburne whom Halliday calls “the most public and persistent habeas corpus litigant of any age” (Farrel & Rohde, 2010, p. 1) states that habeas corpus is “England’s birthright justified” (Farrel & Rohde, 2010, p. 1). As early as in 1770, Sharp, a clergyman’s son wrote in 1770s and 1880s that illegal imprisonment was utterly intolerable adding that “no human authority upon earth can suspend or annul any part of the eternal law, with grievous sin”. (Farrel & Rohde, 2010, p. 1). U.S Context In the U.S., President Thomas Jefferson impressed upon the necessity of habeas corpus during his inaugural address in 1801. He acknowledges “freedom of person under the protection of the habeas corpus; and trial by juries impartially selected. These principles form the bright constellation which has gone before us, and guided our steps through an age of revolution and reformation.” (TheRutherfordInstitute, 2014, p. 1). Since ratification of the U.S. constitution two centuries ago, the habeas corpus right has been suspended only twice. First it was on April 27, 1861 in Maryland and parts of mid-western states by President Lincoln at the time of local riots and local militia action when there was a threat of secession from the Union by the state and second in the early 1870s by the President Ulysses S. Grant during civil rights violations by the KU Klux Klan spanning over nine counties in South Carolina. The U.S. Supreme Court has all along confirmed the importance of habeas corpus right in the twentieth century as in one of the appeals it has stated that “writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action (Farrel & Rohde, 2010, p. 1). Habeas corpus came into focus again in the US in the wake of Oklahoma City bombing in 1996 when the Antiterrorism and Effective Death Penalty Act (AEDPA) was passed. The Act limited the use of writ of habeas corpus in two circumstances. One, one-year statutory period of limitation for bringing action which effectively barred those imprisoned for more than one year. Second, federal judges were expected to follow the precedent without making decisions on merit by merely confirming the decisions of state courts below in appeals. AEDPA also stipulated that any conviction as a result of mistake of law by the state court could be questioned by invoking any constitutional right only if the decision (conviction) is contrary to what is established by Federal law as might have been decided the Supreme Court of the U.S. This ensured that innocence as the ground for habeas corpus invocation could not be pleaded for invoking habeas corpus right (Farrel & Rohde, 2010). The subsequent event of 9/11 attack further motivated the then Bush Administration to take the right of habeas corpus with mixed results. The President as the Commander in Chief, tried to assume himself the power to revoke the basic right even from every American citizen apart from the detainees at Guantanamo Bay who were alien citizens. On May 9, 2007, President Bush issued a “presidential directive” (Farrel & Rohde, 2010) to assume control of the federal government in the wake of a “catastrophic emergency” (Farrel & Rohde, 2010) which expression was capable of covering almost anything that could have a significant impact on the country. By this directive, he sought to gain control of all the limbs of the government- the Executive, Legislature and Judiciary who were supposed to be vested with equal powers. The reason behind this was the fact that there could be only flimsy evidence against the suspected terrorists who could not escape through habeas corpus right for want of evidence. The Presidential Military Order of November 2001 already gave power to the president to detain enemy combatants aliens suspected to be having links to terrorism or themselves as terrorists. It so happened that even American citizens such as Jose Padilla captured on American soil were denied habeas corpus rights which the legal experts said was against the Constitution and the Bill of Rights. Thus, it was decided in Rasul v Bush (Rasul v Bush , 2004) that a citizen’s right of habeas corpus could not be revoked. The Bush Administration then passed Department of Defense Appropriations Act 2006 to nullify any habeas corpus right to non-citizen detainees at the Guantanamo Bay in Cuba. In Hamdan v Rumsfield (2006), this action of the Bush administration was challenged and the Supreme Court ruled that it violated the Uniform Code of Military Justice (UCMJ) and the four Geneva conventions. Undeterred, Bush administration enacted the Military Commissions Act 2006 which denied habeas corpus right to non-citizen enemy combatants who were indefinitely held up in Guantanamo Bay on the grounds of lack of jurisdiction on a foreign soil i.e Cuba (Farrel & Rohde, 2010). As if to end this endless foray on the habeas corpus right by the executive, it was decided in Boumediene v. Bush (2008) by the U.S. Supreme Court that the detainees despite being foreign nationals held in a foreign nation were entitled to habeas corpus right. The Court relied on a comparative analysis of the writ of habeas corpus in English and the U.S. law. The Court demolished the notion that the US Government had no sovereign authority on a foreign soil where the detained had been held. (Walker, 2009). Conclusion From the above analysis of habeas corpus right’s treatment at various points of time in the history, it would be clear that it is a universal human right which cannot be taken away under the pretext of lack of jurisdiction and reasons of nationality even in war times. References Boumediene v Bush , 553 U.S.723 (U.S. Supreme Court 2008). Farrel, S., & Rohde, S. F. (2010). The Origins of Habeas Corpus . The Daily Journal .Retrieved 11 March 2014 < http://www.truth-out.org/archive/item/90778:the-origins-of-habeas-corpus > Hamdan v Rumsfield, 548 U.S. 557 (U.S. Supreme Court 2006). Rasul v Bush , 542 U.S. 466 (U.S.Supreme Court 2004). TheRutherfordInstitute. (2014). Habeas Corpus. Retrieved March 11, 2014, from rutherford.org: https://www.rutherford.org/constitutional_corner/habeas_corpus/ Walker, R. S. (2009). Habeas Corpus Writ of Liberty: English and American Origins and Development. Cleveland State Law Review , 57 (3). Zellick, A., Farbey, J., Sharpe, R., & Simon, A. (2011). The Law of Habeas Corpus (3 ed.). Oxford, UK: Oxford University Press. Read More