Civil Liberties, Habeas Corpus, War Terror Subtopics: Essay

Civil Liberties, Habeas Corpus, War Terror subtopics: Explain historical evolution habeas corpus, including English American traditions. The explanation evolution American tradition include general meaning habeas corpus U.

Habeas Corpus

The principle of habeas corpus promotes the idea that a person needs to be brought before a court in order for him or her to be judged before he or she is provided with a sentence. Habeas corpus is Latin for "that you have the body" and the former written order it is used to bring a prisoner or other detainee in the presence of the court so as for the respective individual to benefit from a fair trial. When taking into account the U.S., federal courts are in charge of using the habeas corpus writ with the purpose of determining whether or not a detainee is being incarcerated as a result of having actually committed the crime that he or she is accused for.

The writ of habeas corpus in the context of English history goes back to the Habeas Corpus Act of 1679 and was largely considered to be one of the most important rights in Britain. The concept came to the U.S. As a result of British influence in the New World and was adopted by Americans on account of the essential role it played in shaping American law. "The great writ of habeas corpus is the most famous writ in the law; and, having for many centuries been employed to remove illegal restraint upon personal liberty, no matter by what power imposed." (WRIT OF HABEAS CORPUS)

The U.S. Constitution contains the habeas corpus act and emphasize that federal courts have the power to use the writ in the case of state prisoners. The Congress is the only authority in the country that has the right to suspend the writ, "either by its own affirmative actions or through an express delegation to the Executive." (HABEAS CORPUS)

II. One of the most recognized situations when an authority in the U.S. suspended the writ of habeas corpus is the moment when President Abraham Lincoln ordered General Winfield Scott to suspend the writ in order to ensure public safety. Lincoln acted in agreement with Article I, Section 9 of the U.S. Constitution stating that "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." U.S. troops arrested John Merryman on May 25 as a result of his collaboration with Confederate forces. Merryman hired a lawyer petitioned Chief Justice Roger Brooke Taney with the purpose of implementing the habeas corpus act. Taney responded by asking General George Cadwallader to acknowledge the ideas put across by the habeas corpus theory and to provide Merryman with the opportunity to stand in front of a court (Dueholm).

Taney further insisted with regard to having the habeas corpus writ accepted as a principal element in the Merryman situation. The Justice related to English history and to how it was meant to be suspended only by legislative powers, with Lincoln's executive role thus being powerless in such a case. Lincoln did not take action consequent to Taney's claims and actually emphasized that the matter would not change (Dueholm).

If a president were to attempt to suspend the writ of habeas corpus in the present he or she would likely encounter serious resistance and the general public would criticize such an act. Lincoln came across exceptional circumstances and this influenced the Supreme Court and lower federal courts to ignore the matter. Such actions are certainly unconstitutional in times of peace and this is why the Lincoln case is an exception from the rule (Vile, 2010, p. 48).

III. There is much controversy concerning the war and terror and a series of situations involving the suspension of the habeas corpus writ. In contrast to previous wars, the war on terror is more confusing and there are no clear boundaries when it comes to actions, both when considering terrorist actions and when considering acts purpose to deter and punish terrorists. The fact that previous presidents like Lincoln and Roosevelt issued suspensions without actually having the right to do so influence contemporary authorities to express extreme caution concerning the concept (The Debatabase Book: A Must-have Guide for Successful Debate, 2009, p.132).

Even though the U.S. does not face a direct war with an enemy that can be identified, the authorities have made it clear that terrorist acts generate a great deal of attention concerning the suspension of the habeas corpus writ. "In Rasul v. Bush, 542 U.S. 466 (2005), the Supreme Court ruled that foreign nationals being held as enemy combatants in the war on terror had the right to challenge their incarceration at Guantanamo Bay." (Vile, 2010, p. 48)

IV. The Boumediene v. Bush, 553 U.S. 723 (2008) case further contributed to highlighting that the habeas corpus writ protects terror suspects at Guantanamo Bay. The case involved Boumediene, a naturalized citizen of Bosnia and Herzegovina, who was held captive in the Cuban Guantanamo Bay detention camps. The June 12, 2008 Supreme Court decision claimed that enemy combatants detained in Guantanamo Bay have the constitutional privilege of habeas corpus (Garcia, 2008, p. 1).

The majority opinion in the case was written by Justice Anthony Kennedy and emphasized that it would be impossible for the court to address Constitutional rights with regard to a non-citizen detained in a territory belonging to another country. Even with this, the majority also made it possible for individuals to understand the role that the U.S. played in this situation and the fact that it needed to act. "In particular, the Court noted that the Guantanamo detainees have been held for the duration of a conflict that is already one of the longest in U.S. history, in territory that, while not technically part of the United States, is subject to complete U.S. control." (Garcia, 2008, p. 9)

The dissenting opinion that the minority expressed in this case insisted that it was irresponsible to say that the writ of habeas corpus supports the idea that the U.S. needs to intervene in the case of aliens abroad. Justice Scalia argued that the U.S. justice system was not properly prepared to deal with such a case and that it would be wrong for someone to accept its decision.

V. Justice Kennedy, one of the most convinced supporters of the writ of habeas corpus in the case of Boumediene v. Bush, focused on making it possible for people to understand that the Constitution and laws in general are meant to remain effective in extraordinary times and that it was essential for the U.S. public to acknowledge the importance of promoting the habeas corpus writ in relation to the topic under discussion.

President George W. Bush designed the Guantanamo Bay detention camp as a means to keep suspected terrorists in captivity as they were being questioned about their motives and their plans. The former president took advantage of the "authority and the power granted to him under ARTICLE II OF THE U.S. CONSTITUTION to create a detainment facility at the Naval Station at Guantanamo Bay to incarcerate individuals who were suspected of involvement in the events of 9/11 or other acts of terrorism." (Schultz, 2009, p. 73)

The Bush Administration ordered that Guantanamo Bay detainees should be held in confinement without the ability to request assistance in accordance with the writ of habeas corpus. President Bush had experienced a series of other cases involving the writ of habeas corpus in the context of suspected terrorists. This was yet another opportunity for the administration to emphasize the danger associated with suspected terrorists and to gain support in keeping individuals detained without providing them with access to the writ of habeas corpus (Schultz, 2009, p. 73).

Previous cases involving the Bush Administration and Guantanamo Bay detainees in the context of habeas corpus influenced Congress to change its position on the matter. "As a result of Rasul and Hamdan, Congress sought to limit the rights of detainees at Guantanamo Bay." (Schultz, 2009, p. 73) Congress thus adopted the Detainee Treatment Act (DTA) in 2005 with the purpose to deny habeas corpus writ to any Guantanamo Bay non-citizens who attempted to access it. The Court responded by claiming that this act was inapplicable to cases that were under discussion at the time. Congress continued to address the problem by implementing the Military Commissions Act (MCA) in an attempt to limit the power of the Supreme Court in cases involving detainees identified as enemy combatants. Bourmediene's case was actually responsible for attacking the MCA and while he initially lost in the lower courts, he was provided with support by the Supreme Court, thus highlighting that Congress was wrong in trying to issue legislations that acted in contradiction to the Constitution.

The 5-4 opinion issued by the Supreme Court made it possible for people to comprehend that both aliens and individuals identified as enemy combatants had the right to express a habeas….....