Habeas Corpus U S Constitution Relationship Protection Civil Essay

Excerpt from Essay :

habeas corpus U.S. Constitution relationship protection civil liberties. 2-The historical evolution habeas corpus, including English American traditions.

The writ of habeas corpus is one of the fundamental rights that a person detained is given. This writ of habeas corpus demands that a person detained by the authorities has the right to be brought before the court so that the basis for such detention can be established. A suspect irrespective of the criminal actions committed is considered innocent until proven guilty. The detainee has the obligation of justifying the reason for detention before a court of competent jurisdiction within a time specified. There are, however, times in which the power of habeas corpus can be suspended by parliament. This could, however result into the practical problem in which the authorities could indefinitely detain suspected criminals rather than bring charges against them. This paper is therefore determined at determining the rationale of the right of habeas corpus, its history, and situations in which the power has been suspended in the U.S. history.

When should the writ of habeas corpus be suspended and when should the government consider security paramount?

The writ of habeas corpus dates back to the thirteenth century in which the procedure of having detained individuals was established. In the mid fourteenth century, the right to demand that the detained individual was left to the individual who will demand that he/she is presented before the court in order for the detaining authority to initiate charges and justify such detention Binney, 1865.

By the late sixteenth century, the writ of habeas corpus had extended and applied to the kings Privy Council who had the judicial and executive functions. The courts now were determined at ensuring that the king and his administration did not act indiscriminately to the members of the society. By early seventeenth century, parliament intervened by passing legislations that required that all individuals detained by the executive enjoyed the writ of habeas corpus. This progress aimed at protecting the detainees from the despotic and draconian regimes of the monarchs. By 1640, the habeas corpus act was passed which granted the persons detained by the executive the right to seek review via habeas corpus. The writ of habeas corpus extended to the U.S. In 1789 and the article demanded that the privilege of the writ of habeas corpus shall not be suspended unless in cases relating to rebellion or invasion

The right of habeas corpus has been instrumental in the prevention against unlawful detentions, arbitrary arrests, torture, and extra judicial killing. A detained individual by being brought before an independent judge gets the opportunity to be heard and protected from being discriminated or tortured. The evolution of this right has been propelled by the struggles that aimed at limiting the powers of the despotic monarch and other dictatorial regimes and has currently been protected by both national and international laws.

The question on the latitude of the application of the power on habeas corpus has been placed on sharp focus since the terror attacks of September 11, 2001. Because of such attacks, the U.S. government has detained indefinitely many-suspected terrorist in Guantanamo Bay in Cuba and in Bargram Airfield in Afghanistan Garcia, 2008.

The detainees have invoked the right of habeas corpus to challenge their detentions. The American government has argued that the right of habeas corpus is not applicable to the detainees because they are considered "enemy combatants" and because they are not located within the U.S. sovereign territory. The determination of the right of habeas corpus was brought before the U.S. Supreme Court in 2004 in which the court upheld that non-citizens detained in Guantanamo Bay had the right to petition for the right of habeas corpus in the federal courts. This verdict resulted into a political determination in which the congress stripped the federal courts the power to hear petitions on the right of habeas corpus brought by "enemy combatants" Department of Justice, 2009.

The Supreme Court later considered this legislation unconstitutional in the 2008 ruling in Burmediene v. Bush (2008).

Governments have always resisted the grant of the right of habeas corpus to suspected terrorists claiming that the court's rulings granting this right are against the spirit of separation of powers, omitting the territorial implication, effective control and are insensitive of the security threats that are posed if terrorists would enjoy such a right. The courts have, however, failed to see the uniqueness of the terrorists and have argued that the argument proposed by the government on the threat to security is inadequate to deny the detainees the right to their basic fundamental rights. The advancement of the act of habeas corpus has been made progressively and has seen the executive power of detention without trial curtailed significantly Freidel, 1967.

The question that remains relevant and that has attracted intense debate is the application of the writ of habeas corpus during emergencies.

The right of habeas corpus was first suspended in the year 1679, just a decade after the passage of the habeas corpus act. The suspension was made during the state of emergency in London where it was argued that the conspirators could use the application of the writ to secure their plot and continue with their illegal plots Binney, 1865.

Extensions of the suspensions have been observed in other jurisdictions where the law is applicable.

In the United States, the right of habeas corpus has been suspended on several occasions. The federal courts have been faced with two instances in which the constitutionality of such suspensions has been tested. President Abraham Lincoln issued a writ to his military to suspend the writ of habeas corpus in 1861 weeks after the commencing of the American civil war. This action was followed by a court case in the U.S. Supreme Court in which the chief justice was faced with the obligation of determining the constitutionality of the president's orders. The court when issuing the verdict stated that the writ of suspension of was only vested in the congress and that they had no authority to issue such suspension. In the judgment, the court reiterated their inability to compel either the military or the president to abide by the ruling but reminded the executive of their oath of protecting the constitution and the laws of the country. Lincoln however failed to abide by the ruling after the first two-year claiming that the security of the state was paramount. The 1863 when the congress expressly passed the mandate of suspending the writ to the president whenever he considered the safety of the public greater Boumediene v. Bush, 2008.

The president was therefore guaranteed the authority to suspend the writ in any part of the country.

The second instance, in which the writ was suspended during the Pearl Harbor attack, was when Americans entered world war two. Habeas corpus writ was suspended in the territory of Hawaii. During this time, the congress empowered the governor of any state that risked invasion or rebellion the power to suspend the writ and put the territory under the martial law until the presidents orders were made known. A petition lodged by one of the individual whose right was curtailed by the martial law to the district court of Hawaii upheld that the suspension of the writ of habeas corpus was unnecessary since there was no immediate threat of invasion. An appeal to the Supreme Court also maintained that the application of the martial law was against the spirit of the constitution and that the districts court ruling was right White House Memorandum, 2002.

The Supreme Court ruling did not, however, decide whether continued suspension of the writ was unlawful since the writ was restored before the case reached the court.

The application of the law of habeas corpus remains relevant as the country is faced with the current security threats against terrorism and other invasion. The role of the president as the commander in chief of the armed forces also becomes pertinent. Since the military has the obligation of protecting the state against invasion and attacks from abroad, the president should retain the power to suspend the writ of habeas corpus in cases of such threats Freidel, 1967.

This writ of suspending the right of habeas corpus should however not be misused by the executive as a way of promoting arbitrary detentions. With the numerous conspirators detained in Cuba and Afghanistan, the American government needs to move with speed in bringing justice to the detainees by reducing the periods of detention. In as much as the congress passed legislations directly giving the president the power of suspending the application of the writ, the former needs to remain vigilant in protecting the citizens from unnecessary misuse of such authority Wert, 2011.

Congress should have limited power to control the executive from misusing the power of suspension.

In my own opinion, the executive should not be left with the sole mandate of suspending the writ of habeas corpus. The judiciary and congress…

Sources Used in Document:


Binney, H. (1865). The privilege of the writ of habeas corpus under the Constitution. Philadelphia: C. Sherman & Sons, printers.

Boumediene v. Bush, F. (2008). ProPublica has published a chart listing habeas challenges by Guantanamo detainees that have been decided by federal judges.

Department of Justice. (2009). Department of Justice Withdraws 'Enemy Combatant' Definition for Guantanamo Detainees Retrieved March 13, 2009, from http://www.usdoj.gov/opa/pr/2009/March/09-ag-232.html

Freidel, F.B. (1967). Union pamphlets of the Civil War, 1861-1865. Cambridge: Belknap Press of Harvard University Press.

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