Habeas Corpus and the War Essay

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Thus, the CSRT was an ineffective "dummy" review tribunal that sought to reinforce the current status of detainees in the Guantanamo detention camp -- denied to have a review of their case, and denied of any right to be tried by a court for their case.

Another compelling argument that ultimately granted the petitioners to their right to exercise the writ of habeas corpus was the Supreme Court's recognition that the Bush Administration's "war on terror" has been a millennium-old conflict in human history -- a conflict between believers of Islam and Christianity. To suspend the writ of habeas corpus based on this kind of "war on terror" would be simply denying the detainees of their rights, as it would probably take centuries still for this "war" to end, if it will ever end at all. Thus, recognizing that the "war on terror" is a war that has been ongoing for centuries, the petitioners are then given the right to have their cases reviewed and they be tried in judicial courts (p. 205).

III. The Executive Perspective: The Bush Administration's "War on Terror"

The suspension of the writ of habeas corpus in Guantanamo also brings into question the extent or reach of the executive power in mandating the Guantanamo scenario (detainees not covered by the U.S. Constitution and Geneva Conventions). As the Bush Administration had demonstrated, it successfully expanded its reach to influence the Congress and the Judiciary (at least up to the district level) in recognizing and adhering to military laws and regulations instituted in Guantanamo.

The Bush Administration's "war on terror" and the Guantanamo situation have blurred specific laws in the U.S. Constitution, particularly those pertaining to the writ of habeas corpus. "Guantanamo habeas cases," as these cases petitioning for recognition and entitlement of the writ of habeas corpus, have been reviewed primarily based on "preponderance of evidence" standard." Ultimately, this standard was determined by the "executive's detention power," although this standard was not clearly defined and determined by the executive. In effect, court rulings at the district level did not also reflect any "clear and convincing" standard that helped determine the petitioners' or detainees' guilt of the crimes or allegations stated against him/her (Waxman, 2009, p. 3).

IV. The Academic Perspective: Habeas corpus in the time of War on Terror

From the academic community of lawyers studying legal process methodology, Guantanamo habeas cases bring into fore not only a rights-based argument for or against entitlement of the writ of habeas corpus, but also the existentialist question of reviewing and deciding on a habeas case for rights' sake (Martinez, 2008, p. 1064). This analysis is indeed provokes thought especially when habeas cases are put in the context of the Bush Administration's "war on terror."

On one hand, the argument that the "war on terror" indeed blurs the line between constitutional and unconstitutional, but terrorist attacks such as the 9/11 bombings provides a glaring manifestation that there is an ongoing war, a war wherein the other side does not adhere to any laws or think about the constitutionality or unconstitutionality of their actions. From this side of the argument, suspending the writ of habeas corpus would probably be the preferred course of action. On the other hand, from the legal academic's perspective, the issue of suspending the writ of habeas corpus as part of the "war on terror" must be analyzed carefully from a methodological or process level. It is only through this kind of analysis that objectivity can be ensured in the midst of a "war" that strongly invokes feelings and emotions when it comes to argumentation, rather than facts and objective observations (p. 1065). While some habeas cases have displayed a specific adherence to objectivity and proper legal process, most habeas cases, particularly Guantanamo habeas cases, have only the executive power and the military to reference from when it comes to identifying or determining the cases or allegations against them.


Gaffney, M. (2009). "Boumediene v. Bush: Legal realism and the war on terror." Harvard Civil Rights-Civil Liberties Law Review, Vol. 44.

Martinez, J. (2008). "Process and substance in the "war on terror." Columbia Law Review, Vol. 108, No. 5.

Terry, J. (2008). "Habeas corpus and the detention of enemy combatants in the war on terror." Joint Force Quarterly, Issue 48.

Waxman, M. (2009). "Guantanamo, habeas corpus, and standards…[continue]

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