Habeas Corpus, Research Paper Example

Introduction

In United States, the judiciary has the power to determine the legality of individual detention, commonly known as Habeas Corpus. Habeas corpus act to guarantee that due process is followed while detaining someone. The law gives a judge the power to determine whether a detainee was arrested lawful, and the power to order the release of the detainees if the ground for their arrest is unlawful. Habeas Corpus serves to up hold the rule of law. At a minimum, the law prevents against unjustified arrest, torturing detainee, and extrajudicial killings. The origin of the right can be traced back to English law in the thirteenth century as a tool to check the power of the monarchy. Today, habeas corpus is protected by the US constitution (McPherson, 2008). However, in the wake of the terror attackers in the past few decades, the proper scope of the right has been the subject of discussion. After the September 11 2001 terror attract in US, the government have detained hundreds of people at location such as Guantanamo bay naval base in Cuba in the name of fighting terror. A larger portion of these detainees were indefinitely detained and charged with crime while some were afforded the ‘prisoners of war status’ (Perret, 2004). Although, many of these detainees have filed a petition for the  Habeas Corpus right in the federal courts the government have continuously denied them that right citing that their status as ‘enemy combat’. In addition, the locations of those detentions are outside the U.S sovereign territory. Some of the most common argument in such petition is that the president violated the suspension clause in deny them an opportunity to review the legality of their arrest. The judicially has at a number of case reviewed the legality of the executive detention and have made some judgment which has come under harsh criticism from executive. For instance, in 2008, the U.S.Supreme Court found the stripping provision unconstitutional in boumedeien v. bush rulling. Within days, the government appealed against the ruling arguing that it will hamper the military operation and the authority of the executive branch. Those against the judicial review argues that the attempts by judicially to take the oversight role in war on terror, hinders the war effort and is not good for national security. This paper strives to provide a perspective of the ongoing political debate by analyzing the right of Habeas Corpus and its role by refereeing to its history. We begin with reviewing the history of the right then the role it played during emergency and then draw a conclusion on the consequence suspension of the right.

The History of Habeas Corpus

After the Norman quest of 1066, a central court was established. The court was placed over all other existing court in England. Under this system, a procedure was needed to summon individuals to this central court. This was established by creating a device of commanding the sheriff to bring an individual to the central court. With time the procedure became established and was later known as habeas corpus. However, due to judiciary rivalry thing started to change. Two type of transformation started to occur, that is individuals started to initiate a Habeas Corpus and  the court started to use Habeas Corpus to review the grounds for individual detention (Ogloff & Chopra, 2004).

With time  the reach of Habeas corpus continued to extend. In the sixteenth centaury, the law was being used to inquire the detention of the king Privy Council. The judicial could now scrutinize the detention ordered by executive. In 1628, the parliament was concerned on the authority of the monarchy, and it supplemented the law to check the monarchy. The parliament supplemented the growth of the Habeas Corpus by passing resolution requiring Habeas Corpus to be used to scrutinize all detention cases, and order for the release of detainee if due process was not followed (Hassler, 2011). In 1640, the parliament enacted the  Habeas Corpus act of 1640. Both judiciary and parliament continued to push  for the development of the Habeas Corpus until 1679 when the parliament passed a comprehensive legislation (Habeas Corpus act of 1679) enhancing the law. The 1679 act limited the movement of detainees, protected their rights, guaranteed speedy trial, among many other things. After the 1679 act the law continued to be establish in English law. It was later adopted in most of the British colonies and other part of the world. In U.S. the law was first guarantee in constitution in 1789. The article 1 of the US constitution guarantees that:

 “he privilege of writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it”.

Suspension of the Habeas Corpus in United States

In 1689, the English parliament suspended the Habeas Corpus for the first time due to the existence of the emergency. Since then, the law have been suspended in countries where the right is guaranteed due to several threats. Such countries include Iran, United Kingdom, Brazil, Israel, and United States. In the United States, the law has been suspended several times during wartime and in all cases the question of constitutionality of the suspension has always been raised (Frymer, 2014, p.287).

For instance, within week of the commencement of the America civil war, President Abraham Lincoln, ordered military commanders to suspend the Wirt of the harbors Corpus. However, a federal court of appeal of Maryland challenged the president authority to suspend the law.  The court ruled that only congress had power to suspend the Habeas Corpus (Darcy, 2012). At that time, the court acknowledged that it lacked power to compel the president and military commander to follow the court order, thus Lincoln continued to use the suspension order throughout the first year of the war. It is in 1863 when the congress passed the law giving the president the power to suspend the law if, in his judgment see that the public requires it. (Contemporary Practice of the United States Relating to International Law, 2005).

In this, two instances the suspension of the law was due to the existence of the immediate threat of invasion or rebellion the constitution requires. By suspending habeas corpus, the rule of law and democracy is sacrificed, to preserve the state.

In the  debate over suspension of the Habeas corpus in modern war on terror The main question that arises pertain the jurisdiction and the procedure. In addition,  the question on whether the al-Qaida attack on united state amount to invasion or rebellion also arise. And considering the nature of terror attacks if the law is suspended for how long should it be suspended.  The US constitution say that the congress has the power to suspend the right.  How there is nowhere in the constitution that limit the power of the president to suspend the law.  Therefore, in case of rebellion and invasion the president can suspend the law, for sake of national security. Again, according to me, terror attacks are a threat to the public safety and it may warrant measure to thwart their attack, suspension of the habeas corpus law is therefore justified. However, it should follow due process and should not preclude the judicial role of reviewing the detention. This is because by doing so it weakens the rule of law. In addition such suspension should be temporary and statutory limited and should be reviewed and renewed regulary.

The role of the law

From the review of history of the law, we can see that it protect the individuals and is usually considered in relation to the individual. However, from its history of the development, we can see another crucial purpose issue- between legal order and the executive. Initially the law was initiated not to protect individual but as procedure to issue a command to the executive.  As the rule evolved in to a tool used to scrutinize the basis of individual detention, the real target was not detainee, but the government officer who is required justify that due process was followed. The enactment of the 1679 act marked the submission of the executive power to the rule of law. This means that the existence of the law serve as a measure and indicator for the existence of the rule of law. In addition, the existence of the habeas corpus serve to indicate the legitimacy of the executive authority. As the history suggest there are situation that warrant the suppression of the law. Such situation and procedures of doing so are clearly spelt out in the constitution (Acker, 2013, 169). In this case, Judiciary has a role of interpreting whether due process is followed. For this reason, suppressing the law by executive without the approval of the judicially, is suppressing the rule of law and democracy. In addition, it puts the legitimacy of the government in question.

Conclusion

The Habeas Corpus remains the single most important tool in vindicating personal liability. Although the Habeas Corpus is important to a single detainee, it has much greater meaning than its effect on individual detainees. Initially the law was initiated not to protect individuals but as procedure to issue a command to the executive. The enactment of the law marked the submission of the executive branch of government to the rule of law. Moreover, the existence of Habeas Corpus law in a country is an indicator that the executive are also subject to the rule of law.  The habeas corpus right is guaranteed by the by the united state constitution. For this reason, executive should not suppress the law, unless during invasion or rebellion, where the national security is threatened. Moreover, even in such situation due process, as stipulated in the constitution, should be followed In this regard, the war on terror is  a threat to the public safety and it may warrant measure to thwart their attack, suspension of the habeas corpus law is therefore justified. However, it should follow due process and should not preclude the judicial role of reviewing the detention. This is because by doing so it weakens the rule of law. In addition, such suspension should be temporally and statutory limited and should be reviewed and renewed regularly.

References

Acker, J. R. (2013). Book Review: Something Old, Something New, Something Borrowed, Something Blue: A Panoramic View of Capital Punishment. Criminal Justice Review (Sage Publications), 24(2), 169.

Contemporary Practice of the United States Relating to International Law. (2005). American Journal of International Law, (2), 479.

Darcy, S. (2012). Larry May, Global Justice and Due Process. Social Theory And Practice, (3), 567.

Frymer, P. (2014). Ideological consensus within divided party government. Political Science Quarterly, (2), p287.

Hassler, W. W. (2011). The President as Commander in Chief. Menlo Park, Calif: Addison-Wesley Pub. Co.

McPherson, J. M. (2008). Tried by war: Abraham Lincoln as commander in chief. New York: Penguin Press.

Ogloff, J. P., & Chopra, S. R. (2004). Stuck in the dark ages: Supreme Court decision making and legal developments. Psychology, Public Policy, And Law, 10(4), 379-416.

Perret, G. (2004). Lincoln’s war: The untold story of America’s greatest president as commander in chief. New York: Random House.