Habeas Corpus and the War

¶ … habeas corpus and the War on Terror: Review of Judiciary, Executive, and Academic Perspectives

Writ of habeas corpus in the U.S. Constitution

The United States Constitution (or U.S. Constitution) includes the writ of habeas corpus, part of the law that states that, "[t]he 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, Article 1, Section 9, Clause 2). This provision enables persons detained by the government to be entitled to their own judicial hearing if they believe that their detention has been unlawful or illegal.

Historically, American civil society had witnessed events that called for the suspension of the writ of habeas corpus. There was the American Civil War in 1861 and the World War II in 1941. However, the writ of habeas corpus had also been inevitably linked to the issue of the U.S. government's war on terror after the September 11 terrorist attack when the Bush Administration in 2002 established the Guantanamo Bay detention camp in Cuba (the detention is popularly and informally called, "Gitmo"). The establishment of Gitmo in Cuba had been controversial in that the detainees were not entitled to any protection under the U.S. constitutional law and/or the Geneva Conventions (Terry, 2008, p. 14). However, in 2008, the writ of habeas corpus significantly played a role in reinstating detainees' entitlement to this legal action, as reflected in the ruling of the U.S. Supreme Court, which stated that the detainees were entitled to the protection of the U.S. Constitution (Gaffney, 2009, p. 199).

The sections that follow will thoroughly discuss the different dimensions surrounding the writ of habeas corpus. Discussions will be contextualized based on the U.S. Constitution and the (former) Bush Administration's declared 'war on terror.' This paper will discuss the relevance and significance of the writ of habeas corpus in contemporary and international legal issues, particularly when applied to the issue of terrorism and (post-modern society) warfare.

II. The Judiciary and the U.S. Government's War on Terror: Boumediene v. Bush

The case Boumediene v. Bush is one of the most-often cited cases during the Bush Administration's ongoing "war on terror" campaign, which included the creation and implementation of legal and military actions that ensured that Guantanamo detainees will be answerable to the executive (then President Bush) and military laws and regulations alone. In this case, detainees apprehended from Bosnia filed for recognition of the writ of habeas corpus, that their case be reviewed and determined if they have been legally or illegally detained in Guantanamo. As a precedent, the petitioners cited the case of Rasul v. Bush, wherein the Supreme Court granted a review of the petitioners' cases after they have failed to be given the right to habeas corpus in the district court (Gaffney, 2009, p. 200). What makes Boumediene v. Bush remarkable in the study of the writ of habeas corpus is that it was through the intervention of the Supreme Court that the history of writ as it applies in American history have been reviewed and related as to its significance with the petitioners' case. Ultimately, Supreme Court ruled in favor of the petitioners, reversing the decision of the district court to enable the detainees to review their cases and be tried in U.S. courts (pp. 205-6).

Two important details of the case related to the issue of writ of habeas corpus characterized the case: first, the establishment of the Combatant Status Review Tribunal (CSRT) as a "substitute" for the suspension of certiorari and habeas corpus for Guantanamo detainees, and second, the war on terror, specifically, the conflict between believers of Islam and Christianity as "the longest wars in our history" (p. 205). The CSRTs were established by the Bush Administration and the military as a reviewing body that shall substitute and enact on legal actions of review (certiorari) and enactment of the writ of habeas corpus. An analysis of the CSRT's role and decisions demonstrated that it was not an effective reviewing body for the Guantanamo detainees, as "detainees were presumed guilty of being enemy combatants from the beginning of the review" (p. 201). At best, it was just review body established to illustrate to the public a semblance of fairness and justice towards the detainees even though reviewers were already prejudiced from the start. 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