The Bush administration's suspension of habeas corpus for enemy combatants

Habeas Corpus and the War on Terror

The opinion expressed in this paper is that the George W. Bush Administration exceeded its authority by incarcerating "enemy combatants" at Guantanamo without offering them the right to be specifically charged with a crime. The idea that the Executive Branch can decide when habeas corpus applies and when it doesn't is an anathema to Constitutional guarantees.

History of the Habeas Corpus

University of Virginia history professor Paul Halliday writes that the writ of habeas corpus has served the Anglophone legal cultures for "…more than four centuries," and its purpose is basically to assure that a prisoner will be brought before a judge and not simply thrown into incarceration without specific charges against him (Halliday, 2010, p. 1).

Halliday notes that among the sources that were used as background narrative to create habeas corpus is the Magna Carta (reputed to be the first document laying out democratic principles); the thirty-ninth clause in the Magna Carta asserts that "No free man shall be arrested or imprisoned…except by lawful judgment of his peers or by the law of the land…" (Halliday, 15).

The words "habeas corpus" was often used in the vocabulary of civil procedure as early as the thirteenth century, albeit it was not connected to democratic procedures; it simply represented "a command, issued as a means…" to link a defendant to some action while he was being brought before a court (Zellick, et al., 2011).

Things began to change for the better for accused persons in 1640, however, when the British Parliament passed the Habeas Corpus Act 1640, which "…abolished all the conciliar courts…and specifically provided that anyone imprisoned by order of the King or Council…" should have the right to be told why he was being imprisoned within three days of his arrest (Zellick, 12). The 1640 version of habeas corpus proved to be ineffective, and an update was passed by the Parliament in 1679 albeit some prisoners were removed to Scotland in order to avoid the writ, Zellick explains on page 15. Notwithstanding some of the nefarious tactics used by prosecutors to avoid the enforcement of habeas corpus, the Act of 1679 "marks the point at which the writ took its modern form" (Zellick, 17).

In the United States, the Judiciary Act of 1789 fully recognized the power of federal courts to issue writs for federal prisoners, but in 1915 the High Court (Frank v. Mangum) "…broadened federal habeas corpus review to ensure that states supplied some 'corrective process'" so criminal defendants could also embrace habeas corpus rights (Scheb, 2008, 261).

The Four Suspensions of Habeas Corpus

As to the question of whether habeas corpus has ever been put on hold in the U.S., the answer is yes, and the particulars are in this section of the paper. To wit, the U.S. Constitution absolutely affirms the rights of the accused, and guarantees that detention cannot be arbitrarily done without due process. Article 1, Section 9 of the Constitution most clearly asserts that habeas corpus is a guaranteed right of the accused. But according to essayist Stefan Brooks, the Constitution also considers the possible suspension of habeas corpus:

"…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. Constitution / Brooks, 2013, 834).

Given that the Constitution has assured the rights of the prisoner to question the legality of his detention, it is certainly extraordinary to discover that Congress has authorized suspensions of habeas corpus on four occasions. The first occurred when President Lincoln (on April 27, 1861) "…suspended the writ of habeas corpus" in Pennsylvania, Delaware, Maryland, and Missouri (Brooks, 834). Lincoln did that to "…forestall secession and secure Washington, D.C. because he feared that there would be pro-confederate "sympathies" on those border states (Brooks, 834). Thirty-eight thousand civilians (sympathizers of the Confederacy) were arrested when they attempted to block Massachusetts troops moving to Washington, D.C. The second instance was after the Civil War when Congress gave authorization to President Grant to suspend habeas corpus in the "Ku Klux Klan Act" (Jackson, 2003, p. 266). The third time habeas corpus was put on hold was in 1902 when there was a huge civilian rebellion in the Philippines. And the fourth instance was in 1941 after the Japanese attacked Pearl Harbor (Jackson, 266).

The Aftermath of September 11, 2001

The U.S. Congress passed the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) which required a one-year period for a defendant to seek habeas corpus review in death penalty cases (Fulks, 2009). The AEDPA also put into force a requirement that "…federal courts defer to the judgment of the state courts unless that judgment was unreasonable" (Fulks, 335). Meanwhile President George W. Bush ordered that the U.S. Naval Station at Guantanamo Bay be made into a prison in order to incarcerate "…individuals who were suspected of being involved in the events of 9/11…" and they were called "enemy combatants" that were not eligible for habeas corpus protections (Fulks, 335).

Notwithstanding that the Bush Administration insisted these "enemy combatants" were not eligible for habeas corpus rights, the Supreme Court rejected those assertions in several pivotal decisions. The most important ruling by the High Court vis-a-vis the Bush Administration's assertion that habeas corpus did not apply to "enemy combatants" came in the Boumediene v. Bush case. The Center for Constitutional Rights (CCR) reports that the High Court's ruling was a major setback for the Bush Administration. "To hold that political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say 'what the law is,'" was the view of the majority, issued by Justice Kennedy. Kennedy insisted that the detainees in Guantanamo were entitled "…to a prompt habeas corpus hearing" (CCR).

Boumediene v. Bush: Editorial Opinions

Contrary to the Bush doctrine that prisoners at Guantanamo were outside the jurisdiction of the Constitution -- and hence, were not eligible for habeas corpus rights -- the U.S. Supreme Court (in Boumediene v. Bush, 2008) ruled that habeas corpus does indeed apply to detainees captured by U.S. forces and held at Guantanamo. Justice Kennedy delivered the official opinion of the Court, and he was joined by Stevens, Souter, Ginsburg, and Breyer; the dissenting opinion was issued by Roberts, and he was of course joined by the other conservatives on the Court, Scalia, Thomas, and Alito. A separate dissenting opinion -- ripe with virulent attacks on the majority by Scalia -- was issued as well. Kennedy's majority opinion basically shot down Congress's two attempts to bolster Bush in this matter (Detainee Treatment Act of 2005 [DTA]; and the Military Commissions Act of 2006 [MCA]), and furthermore, Kennedy referenced the Framer's wish to protect "…against cyclical abuses of the writ by the Executive and Legislative Branches" (Supreme Court, 2008). Basically Kennedy correctly pointed out that the DTA is not a "substitute for the habeas writ" and in effect the MCA is an "unconstitutional suspension" of the writ (Supreme Court, p. 6).

Justice Souter added a concurring bit of narrative, expressing the fact that the "dissents" [Roberts, Scalia, Thomas and Alito] apparently don't accept that the Executive Branch of the U.S. is "…necessarily limited by habeas corpus jurisdiction…" (Supreme Court). As for Chief Justice Roberts' dissent, he attacked the majority by insisting that they ignored the "people's representatives" (i.e., Congress and the DTA); moreover, he said the decision was not "really about the detainees at all, but about control of federal policy regarding enemy combatants," an argument that seems more circular than substantial (Supreme Court).