The Right of Habeas Corpus and the War on Terror, Essay Example

Historical Evolution of Habeas Corpus

From the Latin for “that you have the body,” the right of habeas corpus is generally utilized as a writ in order to bring “a prisoner or other detainee before the court to determine if the person’s imprisonment or detention is lawful” and can be applied in either state or federal courts. Historically, the right of habeas corpus began in Great Britain during the 17th century as common law in order to protect persons from being illegally detained by law enforcement. Legally, a person held in detention or custody can “file a petition seeking a writ which would require the custodian” (i.e., the detainer) to provide adequate legal justification for the detention.” But if the detainer, such as the U.S. federal government, cannot provide legal justification, the detained person is usually released from custody (Habeas Corpus, 2014).

In the United States, the main source for the right of habeas corpus can be found in the U.S. Constitution via the Suspension Clause (Article I, Section 9, Clause 2) which declares that “The Privileges of the Writ of Habeas Corpus shall not be suspended unless when in cases of Rebellion of Invasion, the public safety may require it.” But as noted by the Cornell University Law School, despite the fact that the U.S. Constitution “does not specifically create the right to habeas corpus relief,” U.S. federal statutes allow federal courts to grant habeas corpus to prisoners being held in either state or federal prisons. Also, the U.S. Congress is the only federal body with the constitutional authority to suspend habeas corpus; however, the President of the United States does have the independent authority to suspend the writ of habeas corpus (Habeas Corpus, 2014). In addition, the right of habeas corpus extends to other civil-based liberties, such as in child custody cases, and in cases where a person is being held for trial and cannot pay their bail.

In relation to the war on terror in the United States, in 2005 following the attack on the World Trade Center in 2001, the  Detainee Treatment Act (DTA) was created, along with the Military Commissions Act (MCA) in 2006, both of which greatly narrowed the dimensions of habeas corpus relief. These acts were created mainly in regards to the terrorist prisoners at Guantanamo Bay who cannot legally plead with U.S. federal courts for the right of habeas corpus. Rather, these detainees “must go through the military commissions and then seek appeal” in the circuit court in Washington, D.C. (Habeas Corpus, 2014). But in 2008 after a national dispute, the U.S. Supreme Court decided in favor of Boumediene v. Bush which expanded the geographical reach of habeas corpus by determining that the “Suspension Clause affirmatively guarantees the right to habeas review” in relation to those considered as enemy combatants held in prison outside of America’s physical borders (Habeas Corpus, 2014).

Examples from U.S. History

One of the most prominent examples of the suspension of habeas corpus occurred during the Civil War when President Abraham Lincoln suspended the right to habeas corpus in relation to John Merryman, a Maryland state legislator who was arrested for attempting to stop Union troops from relocating from Baltimore to Washington, D.C.  and subsequently jailed at Fort McHenry by Union military officials. Merryman’s attorney then sought a writ of habeas corpus in order for a federal court to examine the details of the charges, but soon after, President Lincoln suspended Merryman’s right of habeas corpus. Roger Taney, the Chief Justice of the U.S. Supreme Court, then proclaimed that the President lacked the power and authority to suspend habeas corpus. Nonetheless, Merryman remained in custody. Lincoln’s reason for this suspension was his insistence that in the case of Merryman, habeas corpus needed to be suspended in order to send a clear message to the Southern Confederates that rebellion would be met with an immediate Union response (Palomares, 2002, pp. 112-113).

Another example occurred in June of 1839 when Ralph Gould, a free African-American, was placed in prison for more than five days, even though he had not committed a crime. Gould was originally jailed because a Washington D.C. constable believed that he was a runaway slave, despite having served in the U.S. Navy and having proof of his freedom. In desperation, Gould invoked his right of habeas corpus by petitioning Chief Judge William Cranch who soon had Gould released from jail (Naylor, 2005).

Habeas Corpus and Enemy Combatants

Following the terrorist attack on the World Trade Center on September 11, 2001, and the issue of further terrorist attack warnings from the FBI and the CIA, President George W. Bush with the full support of the U.S. Congress suspended the writ of habeas corpus for what they referred to as enemy combatants who allegedly posed an imminent threat against the security of the country. As a result, many have argued that President Bush exceeded his Presidential powers and that since the enemy combatants were not American citizens that they did not have the right to a writ of habeas corpus, especially concerning their detainment at Guantanamo Bay prison in Cuba. As Eli Palomares sees it, because a terrorist attack, such as what occurred on September 11, could be viewed as “extraordinary seems to justify the use of any means necessary to prevent harm,” including the suspension of the writ of habeas corpus. However, such “strong measures to protect public safety might enhance security. . . but at an unreasonable cost to those considered” as enemy combatants, some of whom may be innocent. Also, suspending

the writ of habeas corpus may be “a legitimate tool to prevent a terrorist attack” but it may also be abused, such as when an alleged threat against the U.S. is exaggerated or found to be in error (2002, pp. 128-129). Therefore, it would be safe to say that suspending the writ of habeas corpus could result in unforeseen circumstances, such as affecting the habeas corpus rights of innocent Americans in the name of national security.

The U.S. Supreme Court and Habeas Corpus

As noted by Linda Greenhouse, the U.S. Supreme Court ruled in Boumediene v. Bush that the detainees at Guantanamo Bay do have the constitutional right to “go to federal court to challenge their continued detention” as enemy combatants. The court also declared as unconstitutional “a provision of the Military Commissions Act of 2006 that . . . stripped the federal courts of jurisdiction to hear habeas corpus petitions from the detainees” as alleged enemy combatants. This decision in a 5 to 4 majority rule prompted Justice Anthony M. Kennedy to declare that Detainee Treatment Act of 2005 “falls short of being a constitutionally adequate substitute,” due to failing to offer “the fundamental procedural protections of habeas corpus.” Kennedy also declared that the “laws and the Constitution were designed to survive and to remain in force in extraordinary times,” a reference to the attack of September 11, 2001 (2008).

Along with Justice Kennedy, Justices Stevens, Souter, Ginsburg, and Breyer decided as the majority rule; in contrast, Justices Roberts, Alito, Thomas, and Scalia dissented. As declared by Justice Scalia, the majority decision may prove to result in “disastrous consequences” in relation to more Americans being killed via terrorist attacks. “The nation will live to regret what the court has done today,” stated Scalia, due to the suggestion that the decision was “based not on principle, but rather an inflated notion of judicial supremacy” and the exaggerated need to protect Americans from the activities of so-called enemy combatants (Greenhouse, 2008).

References

Greenhouse, L. (2008). Justices, 5-4, back detainee appeals for Guantanamo. New York Times. Retrieved from http://www.nytimes.com/2008/06/13/washington/13scotus.html?pagewanted=all&_r=0

Habeas corpus. (2014). Cornell University Law School. Retrieved from http://www. law.cornell.edu/wex/habeas_corpus

Naylor, C. (2005). “You Have the Body:” Habeas corpus case records of the US circuit court for the District of Columbia, 1820-1863. Retrieved from http://www.archives.gov/publications/prologue/2005/fall/habeas-corpus.html

Palomares, E. (2002). Illegal confinement: Presidential authority to suspend the privilege of the writ of habeas corpus during times of emergency. Southern California Interdisiplinary Law Journal 12: 101-137. Retrieved from http://www-bcf.usc.edu/~idjlaw/PDF/12-1/12-1%20Palomares.pdf