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Civil Liberties, Habeas Corpus, GWOT
The legal right known as "habeas corpus" is what protects a citizen from being suddenly seized and arrested for no reason, and locked up without trial. It is considered to be a foundation of the modern legal system, and without it there is no guarantee that arrest, imprisonment, or even capital punishment may not be practiced essentially on a whim. The right is officially enshrined in British law by the 1679 Habeas Corpus Act, and was considered to be so necessary a bedrock of the common law that the U.S. Constitution only refers to Habeas Corpus in order to specify the (exceptionally rare) circumstances in which the right may be revoked. The originally British law was entitled "an Act for the better securing the liberty of the subject" but essentially enshrined as legislation an earlier common law concept which used the Latin phrase in its offical writ (Walker 149). The essential concept here is to permit redress for anyone who has been wrongfully or illegally detained. The transfer of British common law concepts into America brought habeas corpus along. While the American legal and political system has a written Constitution that England lacks, habeas corpus is only mentioned in the U.S. Constitution in a strange context. It is not enshrined, either in the text of the Constitution or in the Bill of Rights, as a specific guarantee -- instead it seems to have the tacit status of an expected legal guarantee insofar as the Constitution only mentions it to describe, in Article I Section 9, the means whereby it might be revoked under circumstances of national emergency that threatens "public safety." It is this ambiguous status in the Constitution which has led to the arguments over habeas corpus in the twenty-first century: the basic context of the War on Terror is that terrorists furnish a nonstop equivalent of the "rebellion or invasion" mentioned by the Constitution as a possible threat to "public safety," and therefore have warranted an almost total and permanent suspension of this basic legal right.
Of course habeas corpus bears an intrinsic relationship to the other basic rights that are guaranteed by the Constitution and its Amendments. The promise of "due process of law" that is offered by the Fifth Amendment would seem, by any logical interpretation of Constitutional jurisprudence, to necessarily contain a promise of habeas corpus rights as part of that due process -- the rationale is that of course the Constitution assumes habeas corpus as a basic included right that can only be suspended under the specific terms outlined in Article I. The Fifth Amendment's "due process" clause is additionally reiterated in the Fourteenth Amendment where -- as part of the reconstruction effort after the U.S. Civil War -- the status of former slaves as citizens of the republic would be established in a series of amendments, and where the language specifically and unambiguously forces all the individual states of the union to guarantee "due process" to their citizenry in their own legal jurisdictions. However the basic legal issue under both the Bush and Obama administrations has been about whether or not these rights are guaranteed to terrorists. This has not been an issue in the past with other U.S. citizens engaged in terroristic activity: there was no need to revoke the habeas corpus rights of John Brown after Harper's Ferry in 1859, even though he was arguably attempting to foment precisely the sort of mass rebellion that the Constitution specifically invokes as a potential cause for revocation of the right. Likewise there was never any attempt in the 1990s to revoke the habeas corpus rights of Timothy McVeigh, who was responsible for the most bloody act of homicidal terrorism in American history until a few years later the events of September 11, 2001 left him pipped at the post by Osama bin Laden. Thus the prior jurisprudence involving accused terrorists has never been different from that of any other accused criminals -- they have been guaranteed habeas corpus rights. The reason why this should be different as part of the so-called "War on Terror" is therefore by no means obvious, and it has provided the U.S. Supreme Court for an opportunity to rule in several decisions, most notably in the 2008 case of Boumediene v. Bush, which involved a writ of habeas corpus petition filed by a detainee kept (in pure violation of those rights) in a prison on the U.S. military base in Guantanamo Bay, Cuba.
We should note that habeas corpus is not routinely suspended in this way. Even during the large scale insurrection that constituted the U.S. Civil War, the Federal Government only resorted to suspending habeas corpus once, in the most limited way possible. The events are usefully described by the celebrated Civil War historian James MacPherson, in his study Battle Cry of Freedom. The federal government in Washington D.C. was in a slightly unusual and vulnerable position during the war, because it was situated between a Union state (Maryland) and a Confederate state (Virginia). The difficulty, however, lay in the fact that both Maryland and Virginia were states that permitted slavery -- this is not frequently recognized by those who have not studied the Civil War in some depth, but the fact remained that Maryland was the state where Frederick Douglass was held in brutal bondage, and yet at the same time Lincoln's Emancipation Proclamation had to be couched in such a way as to not offend slave-owners in Maryland, and therefore restricted itself to the manumission of all slaves within Confederate states. These strange ambiguities, however, did not disguise the fact to a large number of pro-slavery Marylanders that the Civil War might very well end slavery as an institution altogether -- as a result, pro-slavery Marylanders, known as "Copperheads," were prepared to organize as a sort of pro-Confederacy fifth column within the Union territory, and had in fact planned to attack the railway supply lines and telegraph lines that headed down into their state from Philadelphia and New York to the north. As a result, Lincoln was persuaded under some duress to suspend the writ of habeas corpus within this portion of Maryland specifically. As MacPherson writes:
Army officers overreacted by arresting a number of suspected secessionists and imprisoning them in Fort McHenry. One of those arrested was a grandson of Francis Scott Key, who had written "The Star-Spangled Banner" when the fort was under British fire a half-century earlier. Another was John Merryman, a wealthy landowner and lieutenant in a secessionist cavalry unit that had burned bridges and torn down telegraph wires during the April troubles. Merryman's lawyer petitioned the federal circuit court in Baltimore for a writ of habeas corpus. The senior judge of this court was none other than Roger B. Taney, who on May 26 issued a writ ordering the commanding officer at Fort McHenry to bring Merryman before the court to show cause for his arrest. The officer refused, citing Lincoln's April 27 suspension of the writ of habeas corpus in portions of Maryland. The confrontation became the first of several celebrated civil liberties cases during the war…In a circuit court ruling on May 28, Taney denied the president's right to suspend the writ…. (MacPherson 287-8)
Taney's grounds for declaring Lincoln's suspension of habeas corpus to be unconstitutional were, however, fairly limited and clear-cut. Taney noted first, correctly, that Article I Section 9 of the U.S. Constitution which declares the circumstances under which habeas corpus may be suspended is an Article enumerating the powers of Congress -- therefore it was not within the powers of the Executive branch, or Abraham Lincoln, to suspend habeas corpus by fiat. As Taney wrote: "I can see no ground whatever for supposing that the President, in any emergency or in any state of things, can authorize the suspension of the privilege of the writ of habeas corpus, or arrest a citizen, except in aid of the judicial power." (Taney 1861). Taney additionally noted the Constitution would not permit the arrest of civilians by army officers without the involvement of a civil court, nor does the Constitution permit anyone to be held in detention indefinitely without a trial.
Every single one of these provisions applies, of course, to the prisoners being held at Guantanamo Bay as a result of the "War on Terror." However the chief lesson to be learned from the standoff between Lincoln and Taney over habeas corpus is fairly sobering: Lincoln simply ignored Taney's decision, and nobody cared very much. Congress made some vague effort to issue an actual Congressionally-sanctioned suspension of habeas corpus to legitimize Lincoln's fiat, but they could not get the votes (typically) and the measure never passed. Instead, what happened was that the crisis passed, the war ended, and Lincoln had effectively expanded the powers of the executive branch with impunity. This is more or less what has happened with Guantanamo. The arguments that the facility does not exist within the actual territories of…[continue]
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