This paper argues that enemy combatants in the war on terror should retain the right to habeas corpus and fair trials despite security concerns. The author traces habeas corpus from English common law through American constitutional tradition, analyzing how the privilege has been suspended during wartime. The paper examines the roles of the Supreme Court, Congress, and the President in determining habeas corpus rights, comparing Bush and Obama administrations' counterterrorism policies. The author concludes that suspending habeas corpus violates American ethical values and that emergency powers should be temporary measures, not extended indefinitely.
The United States of America is the home of the free because of the brave. The brave refers to soldiers who protect the free world, but it also refers to the everyday citizen who fights for the righteous and moral posture that this country is accustomed to. There is no need to stoop to the levels of countries with cruel and unfair practices just to ensure that would-be criminals are locked up. It is the right of the people to have a fair and equal trial for all lawbreakers, whether they are foreigners or legal citizens of the United States. While courtroom technicalities resulting in wrongful release could free terrorists back into the general population to plan future attacks, enemy combatants should have the right to a fair trial because it provides a justification for imprisonment, it is morally and ethically within the United States' value system, and it exemplifies what it is to live in a free country.
Habeas corpus is rooted in freedom and the right to a fair trial for anyone imprisoned—not only a fair trial, but also the right to be imprisoned for an ethical reason. Essentially, a check and balances system has been implemented to prevent lower-level authorities from overextending their political or judicial power to maintain control of the people. Adopted by the framers of the Constitution, the writ of habeas corpus was written into the Constitution because it was one portion of English common law that the framers agreed upon. According to the U.S. Constitution (1787): "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" (art. 1, sect. 9, cl. 2).
United States history of the suspension of habeas corpus has put the nation's ethical character under scrutiny. During every war, habeas corpus has been suspended in one way or another. This has occurred during the McCarthy era via the detention act and has continued in wars under different facades. This suspension is meant to violate the rights of enemy combatants so that there is neither a needed reason to prove incrimination nor a reason to disclose top secret intelligence for ongoing investigations. According to The Harvard Law Review (2012): "In adopting the Suspension Clause, the Founding generation imported the privilege and the power to suspend it from English tradition" (p. 904). This is an important difference from the English origination of habeas corpus, because it essentially allows the United States to suspend the right when it sees fit.
The relevance of habeas corpus to the contemporary United States situation during the war on terror represents a lazy way to ensure the safety of the people. The United States has taken martial law into common practice, where the rights of citizens and foreigners have been violated. Many people have been imprisoned with only suspicion of terrorist activity, and it is feared that this will eventually extend to all citizens. According to Poole and RĂ©nique (2003), "Moreover, all of the antidemocratic measures invoked to fight this terrorism such as suspension of habeas corpus, special military tribunals, sanctioned racial profiling, heightened surveillance, 'homeland security,' military checkpoints, unrestricted wiretapping, and censorship were hauntingly familiar to Latin Americans" (p. 151). The citation draws contrast to the situation in Peru, where the government was doing much of the same things as the United States government. It is striking how history comes full circle and repeats itself, especially considering the citation was written in 2003. What matters is that violations are happening, and they are not in the moral and ethical code of this beloved country.
The United States Supreme Court sees habeas corpus as a realm that should be tried by them. This is controversial because the executive branch and Congress see this as an area where they must ensure not to give a favorable ruling and release a person who is an actual terrorist. The uncertainty of the Supreme Court's ability to make a unanimous judgment comes from cases such as Boumediene v. Bush, where the Supreme Court voted five to four in favor of habeas corpus rights for detainees. This is a serious situation where four justices did not see the case the same as the majority. The other branches thus justify their resistance to leaving these tough decisions in the hands of the United States Supreme Court. According to de Londras (2008): "The final reason for focusing on habeas jurisdiction is that this has been the gateway issue in Supreme Court Guantánamo Bay litigation thus far and the denial of habeas corpus rights to Guantánamo Bay detainees has been a consistent and important element of the United States administration's approach to contemporary counter-terrorist operations" (p. 39). The denial of rights at this point is the norm for the United States government as it pertains to the war on terror. This represents a serious problem, as it is neglecting the civil rights of the prisoner.
The role of Congress in determining when habeas corpus can be suspended is an important one and has been enacted in nearly every war. When approved, it is never without controversy, and when prohibited, habeas corpus is always masked under a different name, such as the detention act. According to Corbett (2012), "Emergency powers acts that permit the suspension of law truly are either too rigid to be applicable to all emergencies (like the view that only Congress may suspend habeas corpus) or grant too much discretion to the executive (as when Congress does not have to be involved)" (p. 643). Emergency powers are a necessary piece of administrative power because they are meant to be used in times where immediate action is required. There is no time for legislation and red tape, but only time to act.
The role of the President as Commander-in-Chief regarding habeas corpus is problematic. When President Obama was running for the presidency, he was very critical of the rights violated under the Bush administration. However, as President, he carried the same legislation as President Bush did. According to Vladeck (2010), "the Obama Administration has continued many of the more controversial counterterrorism programs begun or expanded during the tenure of President George W. Bush, including initiatives heavily criticized by then Senator Obama during his presidential campaign" (p. 1). Like Presidents of the past, campaign rhetoric is often filled with change used as fodder to win an election. This fodder is actually filled with inaccuracies because of the candidate's lack of knowledge about how systems such as emergency powers and suspension of habeas corpus are authorized.
The Supreme Court's role in protecting civil liberties would be black and white in a perfect world. However, there is no black or white—there is only the gray area. This is why it is hard to place such a huge topic as homeland security in the hands of the Supreme Court. According to Fiebig (2010): "The Supreme Court's guidance regarding police checkpoints has been sufficiently vague to encourage city administrators to authorize checkpoints of questionable legality in the face of rising crime" (p. 600). This demonstrates the Supreme Court's lack of clear guidance as it relates to gray areas of civil liberties. As seen in close margins on past Supreme Court judgments, there is no place for uncertainty. When the system that the Supreme Court operates within is refined, there will be a better system for all. It is not that the Justices are incompetent, but rather that they need to have a plus-two or plus-three majority ruling instead of a plus-one system.
Terror never rests, so the war on terror also shall never rest. There is an absolute need to enact emergency powers, but it should not last the extent of a twelve-year war. Emergency powers should be used as a stopgap until more refined and deliberate legislation can be passed. To compromise the United States' integrity, ethical code, and moral compass is unjust. There needs to be a clear-cut plan for laws as they pertain to enemies of the state, and this needs to be precise in the intent of the people. The ad hoc form of law that has been enacted in the past must cease to exist, and there will be justice for all. That is why we are the United States of America, the land of the free—for these reasons, we must vow to serve and protect it from any enemies, foreign or domestic.
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