Habeas corpus in the context of the war on terror

Habeas Corpus and War on Terror

For many people in the United States, habeas corpus is the foundation stone of the country's legal system. The concept is the principal constitutional check on subjective government power by allowing an arrested individual to challenge the legitimacy of his/her detention. However, this foundation of the legal system has emerged more as a tool of politics as it is of law, especially with regards to the global war on terror. A writ of habeas corpus is defined as the demand by a court that a governmental agency produces an offender and show that they have proper grounds on which to detain him/her. Habeas corpus is commonly known as the Great Writ because it's the mechanism that is used to liberty as mentioned in the U.S. Declaration of Independence i.e. The right not to be detained arbitrarily.

Writ of Habeas Corpus in the U.S. Constitution:

A writ of habeas corpus is an order that is judicially enforceable, which issued by a court of law to prison personnel that requires a prisoner to be brought to the court in order to ascertain whether the prisoner was legitimately incarcerated or should be released from custody. The writ is a petition filed with a court by an individual refuting his/her own incarceration or the imprisonment of another. The habeas corpus petition must demonstrate that the court ordering the incarceration or detention of the person made a legal or factual mistake. Therefore, this writ is the constitutionally granted right of an individual to present evidence before a court of law in attempts to prove that he/she was wrongly imprisoned (Longley, n.d.).

In the United States, the right of writ of habeas corpus is granted in Article I, Section 2 of clause 2. According to this provision, the right to this writ shall not be suspended unless when in cases associated with invasion of public safety or rebellion that may require it. While most of the individual rights of Americans are based on the Bill of Rights, the writ of habeas corpus is an exception since it linked to some individuals' rights. The main reason for the exception is that it's an ancient legal procedure that commands the government to demonstrate or provide a legal proof for imprisonment of an individual.

As a result, a writ of habeas corpus is directly linked to the protection of civil liberties since it seeks to protect people from arbitrary imprisonment by any governmental agency. One of the major leading struggles in the history of humanity has been limiting the powers of the government. Throughout history, many governments have presumed to command, order, rule, and threaten humans or citizens. The reason for these initiatives is to make huge number of people bend to the political will of the masters of these governments. Political rulers have usually regarded themselves as gods with powers that are relatively similar to that of divine beings. Habeas corpus has been a significant means in limiting these governmental powers since it has helped to overthrow the arrogant pretense by political authority (Ebeling, 2002).

Origin of Habeas Corpus:

While the root of habeas corpus is still unclear, it can be traced back to 1215 in English history when King John issued the Magna Carta as a result of pressure from noblemen. The Magna Carta was the Great Charter of English freedom since it was part of the legislation of the land that the king was required to obey. Initially, habeas corpus was used to bring a prisoner into court for trial through it slowly became a right that was accessible for the protection of people against arbitrary imprisonment by the state or government.

During the political and religious disorder of the 17th Century, there were numerous concerns in England regarding the abuse of power, particularly in church or ecclesiastical courts and in imperial tribunals like Star Chamber, which the underground agency has used to punish the enemies of the state. Even after the demise of the State Chamber in 1641, the abuses of power continued resulting in the enactment of the Habeas Corpus Act. The enactment of the Act in 1679 reinforced the powers of the courts to grant the writ and made officials individually responsible for violating the law.

Habeas corpus was brought by the colonists as part of rights and privileges within the English Common Law. As a result, during the decades prior to independence, refusal to grant the writ was an accusation making the revolutionary generations to write the guarantees of the right in state and federal constitutions. The first legislation to be enacted by the Congress in relation to the right is the 1789 Judiciary Act that empowered all federal courts to grant the writs to serve as inquiry into the reason for commitment. Notably, state legislatures followed suit and enacted similar laws as people were allowed to petition a court to issue the writ. One of the major tests of the writ of habeas corpus was the Civil War since it generated concerns about the extent individual rights expand into a national emergency ("The Right to Habeas

Corpus," n.d.).

The increased use of habeas corpus in every area of law was witnessed in the 20th Century due to the extension of protected rights under the constitution in the Fourth Amendment. Currently, its use by prisoners is regarded as an essentially controversial use of the habeas petition. This has contributed to many famous questions that the use of the writ of habeas leads to delays in the finality of justice. As a result, the Congress and Supreme Court have in the recent past limited habeas petitions in capital cases.

Applicability of Habeas Corpus:

Generally, habeas corpus is a traditional remedy for evaluating the legitimacy of all imprisonment through its basic significance in American history has been to challenge the Executive's powers. During the process of drafting the constitution, the framers considered their heritage as Englishmen that had taught them to fear the unchecked or unrestricted power of the executive. While they separated governmental powers across three branches, they also provided a means to challenge the use of this power in relation to the branch that is directly linked to administering the law. As an example of such means, the writ of habeas corpus could not be suspended except when it was necessary to preserve national interests or the nation itself.

As previously mentioned, the applicability of a writ of habeas corpus extends to all cases except those of rebellion and invasion of public safety that may require the suspension of this privilege. However, the applicability of the law has caused sharp divisions between liberals and conservatives who have raised different opinions on the use of the privilege. Conservatives consider the writ as a means that guilty individuals use to escape convictions and sentences. These individuals focus on the significance of finality and encourage the restriction of the right to people who make colorable demonstration of their innocence. On the contrary, liberals view the privilege as a fundamental protection against individuals detained in infringement of the U.S. Constitution and laws. As a result, they state that the right does not exist only to free innocently convicted people but to ensure that no individual is detained because of violation of his/her constitutional rights (Chemerinsky, n.d.).

The major examples of the suspension of the privilege of habeas corpus in the history of the United States occurred in the 21st Century after the nation revoked the long-established right. The suspension attracted huge public attention and sparked debates that made the headlines across the media. This is regardless of the fact that the U.S. Constitution allows for the suspension of the right though in extreme and express cases only, which are subject to interpretation. Notably, the suspension of the privilege also occurred in the 20th Century as it was revoked for a chosen group i.e. people of Japanese decent, who were naturalized citizens or American-born. The right was suspended for more than 100,000 Japanese-Americans who were imprisoned during the Second World War through a presidential decree.

Recently, the privilege was suspended during the ensuing War on Terror after the terrorist attacks on September 11, 2001. This suspension was upheld after President Bush and the Congress concluded that the prevailing situations necessitated repealing the right to habeas corpus. This resulted in the enactment of the Military Commissions Act that reserved the privilege to all people detained by the United States (Clark, n.d.).

This demonstrates that habeas corpus review by the courts can be suspended, especially in times of crisis. In the history of the United States, there have been only four suspensions of the writ i.e. during the Civil War, Reconstruction, in the Philippines following the Spanish-American War, and in Hawaii during the Second World War. However, the most intriguing suspension of habeas corpus is that by President Lincoln since he claimed the authority that the Constitution seems to grant Congress (Shaw, 2009).

The Writ and War on Terror:

In the past decade, concerns about the proper scope of habeas corpus have been brought into sharp focus, especially in relation to the War on Terror. Following the 9/11 attacks, hundreds of people have been detained by the American government in various locations like Guantanamo Bay and Bagram field as part of America's war on terror. The relation between the imprisonment of these people and the privilege is the fact that most of them face indefinite imprisonment without being charged with an offense or afforded the status of prisoner of war. However, these detainees have sought to use the proceedings of habeas corpus in order to challenge the legitimacy of their imprisonment (Farrell, 2010).

Initially, the American government held that habeas corpus was not available to the detainees because of their location outside the sovereign American territory and their status as enemy combatants or illegal combatants. The Congress has subsequently made a political decision regarding the suitable scope of habeas corpus and enacted legislation that partly stripped the jurisdiction of federal courts to determine habeas corpus petitions that were brought by enemy combatants. However, the jurisdiction-stripping decision was found unconstitutional by the United States Supreme Court in 2008 in the ruling in Boumediene v. Bush case. Notably, none of the petitioners in the case is a citizen of a country at war with America and denied any associations with any terrorist network. While the views of the dissenting justices was that the privilege should not be granted to enemy combatants, the majority conferred the constitutional right of habeas corpus on alien enemies detained abroad in the course of war on terror.