The Right of Habeas Corpus in the Context of the War on Terror - Research Paper Example

The Right of Habeas Corpus in the Context of the War on Terror Insert Insert s The concept of habeas corpus, English in origin, literally means that “you have the body,” which means that the court is capable of forcing the police into producing a prisoner before them to review their case (Clark, 2008). While it is complex when being used, a writ of habeas corpus builds the foundation for the accused rights. It allows one institution of the government that is the court, into checking and balancing the actions of another branch, the police, in criminal proceedings. While the habeas corpus remains as a fundamental right of those that are imprisoned, this inmates’ protection has been tampered with in the American history. Making it; therefore, sometimes a casualty of the American desire for security in times of crisis (Milton, 1989). In the essay, the historical evolution of habeas corpus, which includes its English and American traditions, will be examined. The suspension or rescheduling of the habeas corpus in the U.S. history and its relevance to the contemporary U.S. situation in the time of war on terror will also be examined. The American philosophy of habeas corpus originates in the common law that was brought into the United States from England. Sir William Blackstone in his commentaries on the Laws of England, credited the origin of the Writ of habeas corpus principles to the ancient Saxons who conquered England immediately after withdraw of Roman Empire from British Isles (Howard, 1995). Habeas corpus, therefore, denotes to the legal precedent that holds that an accused may not be detained in custody when there is not just cause. Blackstone described the early purpose of the writ of habeas corpus as ensuing from the assumption that the president of the king should have account at all times, why the liberty of any of their citizens or subjects is restrained, wherever that hold back might be inflicted. Articles 1, section 9, Clause 2 of the U.S. Constitution upholds the practice of the use of the writ of habeas corpus (Howard, 1995). In the North American history (USA), there has been instances where the writ of habeas corpus procedure being suspended. For an instant, Abraham Lincoln, the president of U.S. succeeded in having it suspended during the Civil. This led to allowing the imprisonment of military members, prisoners of war and any suspended traitors and spies were to be held for the time of the war without being given trial. In addition, Confederate President Jefferson Davis had habeas corpus suspended in the Confederate States of America. During the World War II, the writ of habeas corpus was suspended (Lee and Gamble, 2001). It was in the case of the individual of Japanese ancestry as well as some German prisoners that were held in the United States. In the recent years, in the American history, the writ of habeas corpus suspension has been proposed in relation to persons arrested, suspected or accused to have participated in acts of terrorism. This suspension situation has increasingly become a controversial topic, whereby the American citizens are under the habeas corpus protection while foreigners are currently being held without trial at Guantanamo Bay. According to Shackelford, the contemporary U.S. situation in times of war, habeas corpus plays a significant role. It relates with the right of the defendants whereby they are supposed to be indicted thereafter tried in a timely manner for the crime they have committed (2009). The government must justify the detection of any individual under the right of habeas corpus. The government must depict the reason and the right of holding that person. If they are unable, then they have to release those individuals. In the current continuing war of terror, there have been controversies of the individuals who have the right to habeas corpus. There is debate on whether the government can merely hold individuals for long periods being referred to as the enemy of combatants, without charging the individuals with a particular crime. The interpretation of the writ of habeas corpus by the U.S. Supreme Court with respect to the illegal combatants or enemy combatants is the ruling in the case of Bush versus Boumediene, which was decided in 2008 (Clark, 2008). In the case, it was ruled by the Supreme Court that even the unlawful enemy combatants that were being held at Guantanamo Bay also held the right to habeas corpus. After the 9/11 attacks and the Afghanistan U.S. military invasion, the United States government established a prison camp at Guantanamo Bay. Moreover, the Congress in 2006 passed a law that made it essentially impossible for the war detainees petitioning for the writs of habeas corpus. The Supreme Court in 2008 decided the case of Boumediene. In the case, the Supreme Court rules that the United States needed to extend the right of habeas corpus to persons who were unlawful enemy combatants. It concentrated on those who were captured during the war on terrorism (Shackelford, 2009). What the Constitution say in Article one, Section nine, Clause two is that “the privilege of the rights of habeas corpus shall not be suspended.” It goes further and states that “except when in Case of Invasion or Rebellion; thus the public Safety will definitely require its suspension.” However, the Constitution does not state who is legally allowed to determine if there is an invasion or rebellion. For an instant, can the 9/11 attacks be classified as an invasion? Nevertheless, both the Congress and the President in the Civil War poise a writ of habeas corpus in a single case each (Lee and Gamble, 2001). It implies that both the President and Congress do have some role in the suspension process. The Supreme Court plays a significant role in protecting the civil liberties whereby it can overturn acts of other elected branches. This is when it believes that the stated acts are violating the Constitution. In this capacity, the Supreme Court tries preventing the elected institutions from violating civil liberties. A scenario of this happened in the case of Boumediene verses Bush. In this instant, the Court struck down the law that allowed the suspension of the writ of habeas corpus for individuals who were deemed enemy combatants during war on terror (Clark, 2008). Therefore, when the Court takes such action, it means that it is fulfilling its purpose as protector of civil liberties. In conclusion, my opinion regarding the balance between civil liberties and nation security, should only be restricted if it means that the freedom of one person leads into harming another person. Under the arm principle, people liberties can only be abrogated in support of national security. This happens if it is conclusively proven that there will be harm because of those people being engaged in those liberties (Shackelford, 2009). Therefore, habeas corpus as a cornerstone right in the U.S. criminal justice system goes back to before the American founding of the government. Controversies continue to rise while the use of the writ of habeas corpus has expanded and when the government, via insecurity during crisis, has been seen fit on denying this right (Lee and Gamble, 2001). Instead of diluting it or weakening its meaning, people need to embrace it consistently. References Howard, L and Greg, G (2001). Modern Legal Controversies. New York: New Castle Publishing. Joshua W (2008). Habeas Corpus: Its Importance, History, and Possible Current Threats. University of Tennessee, Knoxville Meltzer, M (1989). Voices from the Supreme Court. New York: Thomas Y. Crowell. Scott J (2009). Habeas Corpus Writ of Liberty, Boumediene and Beyond; Cleveland State Law Review, Cleveland State University Press Zinn, H (1995). A People’s History of the United States: 1492 – Present. New York: Harper Perennial. Read More