Right of Habeas Corpus in the Context of the War on Terror

Habeas Corpus / GWOT

The civil rights entailed by habeas corpus -- a Latin phrase meaning something like "let you have the body" -- ultimately find their origin in the Magna Carta, a document which was signed (somewhat reluctantly) by King John of England nearly eight hundred years ago, in 1215, and which placed basic limitations on the absolute rule of the monarch or sovereign over the representative government of Parliament. Parliament would gradually expand its own rights by legislation, and so the more direct origin of habeas corpus is the 1679 Habeas Corpus Act, whose formal title was "an Act for the better securing the liberty of the subject" (Chomsky 2012). The basic provision of the act was to allow remedy for those wrongfully or illegally imprisoned. Although the United States (unlike Great Britain) has a formal written Constitution containing enumerated rights, habeas corpus occupies a slightly odd position in the U.S. Constitution: it is mentioned in Article I Section 9, not as an enumerated right, but as something which the authors seem to have assumed so thoroughly as the basis of constitutional rights that habeas corpus is only mentioned in the negative, in terms of its possible suspension: the relevant sentence reads "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." It is perhaps this unusual form of inclusion into the Constitution that has permitted the suspension of habeas corpus to be such a contentious issue in 2014. However, the basic concept of habeas corpus does become an enumerated right with the Fifth Amendment to the U.S. Constitution, whose famous "due process" clause is basically stating the principles behind habeas corpus: "Nor shall any person…be deprived of life, liberty, or property, without due process of law," a phrase that would later be incorporated into the Fourteenth Amendment, where (in the wake of the U.S. Civil War and the abolition of slavery) it is directed specifically at the individual States of the Union. The basic tension, however, with habeas corpus at the present moment is that, while it would seem quite clearly to be part of this constitutional guarantee of "due process," the Constitution's own allowance of its potential suspension under specific circumstances has raised the question of whether those circumstances are met by the so-called "Global War on Terror" in the 21st century -- a question addressed by the U.S. Supreme Court in its 2008 decision Boumediene v. Bush.

Historically, habeas corpus has been suspended very rarely. The most famous example occurred during the U.S. Civil War, in the presidency of Abraham Lincoln. The circumstances are usefully summarized by historian Doris Kearns Goodwin in Team of Rivals (2006):

Receiving word that the mobs intended to destroy the train tracks between Annaolis and Philadelphia in order to prevent the long-awaited troops from reaching the beleaguered capital, Lincoln made a controversial decision. If resistance along the military line between Washington and Philadelphia made it "necessary to suspend the writ of Habeas Corpus for the public safety," Lincoln authorized General Scott to do so. In Lincoln's words, General Scott could "arrest, and detain, without resort to the ordinary processes and forms of law, such individuals as he might deem dangerous to the public safety."…Lincoln had not issued a sweeping order but a directive confined to this single route. Still, by rescinding the basic constitutional protection against arbitrary arrest, he aroused the wrath of Chief Justice Taney…Ruling in favor of one of the prisoners, John Merryman, Taney blasted Lincoln and maintained that only Congress could suspend the writ. (Goodwin 354-5).

It is worth noting several crucial facts about Lincoln's actions here. First, as Goodwin specifies, Lincoln's order was "confined to a single route" -- it seems to have been done with the language of the Constitution in mind, focusing on the "rebellion" and threat to "public safety" specifically referred to in Article I Section 9. Moreover, what Goodwin does not note in this passage, Lincoln's actions were confined to the state of Maryland. Maryland remained within the Union during the Civil War -- if it had not, Washington D.C. (situated as it is on the border between Maryland and secessionist Virginia) could not have remained the Capitol during the War -- however it was a state where slavery was legal. We may remind ourselves that Lincoln's Emancipation Proclamation exempted Maryland from freeing its slaves: it only freed the slaves of the Confederacy. This may perhaps indicate that the problem of "rebellion" in Maryland was very much on Lincoln's mind -- to this day, Maryland remains the only state in the Union whose official state anthem ("Maryland, My Maryland") advocates violent overthrow of the federal government (with lyrics that refer to Abraham Lincoln himself as "despot," "tyrant," "vandal," and "Northern scum") -- especially considering that the bloodiest battles of the Civil War (like Antietam) were being fought on Maryland's territory. In other words, as the lyrics of "Maryland, My Maryland" make clear, the state may have technically remained in the Union but rebellion and violent opposition on the part of slaveowners made sabotage and mob violence a real possibility, then Lincoln invoked the Consitutional provision precisely as it was meant to be invoked. However, as Goodwin notes, the action also instantly raised an issue of balance of powers between the branches of the U.S. government: the Judiciary branch immediately ruled that the Constitution did not grant this right of suspension to the Executive but rather to the Legislative branch. Chief Justice Taney's ruling in Ex-Parte Merryman was correct on this point: Article I Section 9 of the Constitution overall discusses powers "vested in the Congress." After Taney's ruling, Congress immediately met to vote in approval of Lincoln's decision, but the legislation ran into partisan obstruction and was never made law. Meanwhile, Lincoln's administration continued with the suspension of habeas corpus in defiance of the Chief Justice's ruling, seemingly on the principle that if (to recall the earlier words of President Andrew Jackson) Taney had made such a decision in the midst of a Civil War, let him enforce it.