Habeas Corpus and the War on Terror Essay Example for Free

Habeas Corpus and the War on Terror Essay In this paper I will be diving in to the history of Habeas Corpus and how it has evolved over the years. I will briefly explain the origination of the habeas corpus, the role it plays in U. S. A and what current action is being taken about it. I will be also looking in to the Bush administration and the way they dealt with habeas corpus. The original purpose of habeas corpus was to bring people into court rather than out of imprisonment and by the year 1230, the writs utility for that purpose was a well-known aspect of English common law. Known as the Great Writ, its codification into English law came by way of Parliament in the Habeas Corpus Act of 1641, created in response to the King of Englands actions during what is now referred to as Darnells Case. In Darnell, five English noblemen were thrown into the castles dungeon deep for failure to support their countrys dual wars against France and Spain. The men filed suit, requesting the King provide an explanation as to their imprisonment. King Charles refused, on review; the court upheld the monarchys steadfast silence, stating that the law did not require the King to provide any justification for their detention. The public outcry against this decision was deafening, prompting Parliamentary action the following year. Parliament expanded habeas rights several years later with the Habeas Corpus Act of 1679, additionally requiring charges to be brought within a specific time period for anyone detained for criminal acts. By 1765, habeas corpus was firmly imbedded within the foundation of English law, as noted by William Blackstone, who described the Great Writ as a second magna carta, a stable bulwark of our liberties. This fundamental English right successfully traversed the Atlantic Ocean when our founders incorporated the doctrine of habeas corpus into the U. S. Constitution. As stated, 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. Known as the Suspension Clause, this provision specifically places the ability to suspend habeas corpus in the hands of Congress only during times of rebellion or invasion. Despite the clarity of the clause, the American debate on habeas corpus only begins at this point. The Great Writ of habeas corpus has long had an iconic status as the writ of liberty which ensured that no person could be detained in prison without being put to trial by a jury of his peers. According to the traditional version, popularized by Whiggish constitutional writers from the late seventeenth century onwards, the English constitution as embodied in the common law had, since time immemorial, striven to protect the fundamental rights of Englishmen and women, which included the right to personal liberty obban, M. Halliday, P. D. (2011). Habeas Corpus is an ancient common law prerogative writ a legal procedure to which you have an undeniable right. It is an extraordinary remedy at law. Upon proper application, or even on naked knowledge alone, a court is empowered, and is duty bound, to issue the Extraordinary Writ of Habeas Corpus commanding one who is restraining liberty to forthwith produce before the court the person who is in custody and to show because why the liberty of that person is being restrained. Absent a sufficient showing for a proper restraint of liberty, the court is duty bound to order the restraint eliminated and the person discharged. Habeas Corpus is fundamental to American and all other English common law derivative systems of jurisprudence. It is the ultimate lawful and peaceable remedy for adjudicating the providence of liberty’s restraint. Robertson. J, (2002). After the attacks of 11 September 2001, came the war in Afghanistan followed by the war in Iraq: a two-pronged engagement collectively known as the Global War on Terror As U. S. rmed forces captured enemy combatants by the M35 truckload, the Bush administration pondered how to systematically detain such persons in a manner that would provide adequate detention while maintaining intelligence-gathering capabilities vital to the war efforts. The answer was found on the island of Cuba: Guantanamo Bay. U. S. naval forces have occupied this site since 1903, and it seemed to provide the perfect solution. Relying on the Courts previous precedent in Johnson v. Eisentrager, govemment officials believed that keeping enemy combatants outside the realm of U.  S. territory would preclude such individual’s filing, among other things, claims for habeas corpus review. The govemments legal position was tested almost as quickly as the detainees arrived. Beginning in 2002, the United States transported captured enemy combatants to the area of Guantanamo Bay known as Camp X-Ray. Applications for writs of habeas corpus by Guantanamo detainees were made as early as February 2002. In Coalition of Clergy v. Bush, the U. S. District Court for the Central District of California first approached this issue in line with govemment expectations. Relying on Johnson v. Eisentrager, the court held that several U. S. citizens under the Coalition of Clergy, Lawyers, and Professors who had filed show cause petitions on behalf of enemy combatants held at Guantanamo Bay lacked standing to assert claims on behalf of the detainees. The court further concluded that, even if petitioners did have standing, this court lacked jurisdiction to entertain those claims. Moreover, the court found that no federal court would have jurisdiction over petitioners claims, so there is no basis to transfer this matter to another federal district court. Because Guantanamo Bay remained outside U. S. sovereignty, the case closely mirrored that of Eisentrager As a result, the United States failed to maintain jurisdiction and the court dismissed the petition. In response to the terrorist attacks of September 11, 2001, Congress passed the Authorization for Use of Military Force which grants the President power to use all necessary and appropriate force' against all who either participated in any way in those attacks or gave refuge to those who participated. Under this authority, the Department of Defense ordered several enemy combatants to be transferred to Guantanamo Bay for detention. In Hamdi v. Rumsfeld, a plurality of the Court recognized that the ability to detain individuals engaged in armed conflict against the United States was so fundamental and accepted an incident to war as to be an exercise of the necessary and appropriate force Congress has authorized the President to use. Notwithstanding this explicit sanction of detention, the Court held that the citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Governments factual assertions before a neutral decision maker. The Court suggested that this could be done by an appropriately authorized and properly constituted military tribunal. Pond, B. C. (2009). The rationale for the U. S. detention policy derives from the Bush administrations comprehensive military order issued on November 13, 001, which is intended to govern the Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism. Purportedly modeled after a proclamation and military order issued by President Franklin Delano Roosevelt during World War II, President Bushs military order limits the use of military commissions to any non-citizen for whom the president determines: is or was a member of al Qaeda, has committed, aided or abetted, or conspired to commit terrorist acts, or has knowingly harbored one or more of these individuals. Several months after the issuance of this military order, the administration began using the term enemy combatant to describe those subject to detention and trial by military commission. The administrations definition of enemy combatant, however, has varied over time. The administration sometimes uses the enemy combatant label as a term of art to describe a new and unique category of combatant in the post 9/11 world. On other occasions, the administration uses the term generically to describe what traditionally has been called lawful and unlawful combatants, while at other times the term is used synonymously with unlawful combatants. According to this definition, the term enemy combatant is not limited to war combatants alone, but includes anyone who has aided terrorist organizations fighting against the United States, including those who may have unwittingly given financial support to al Qaeda. The Joint Chiefs of Staff issued a slightly different definition of enemy combatant on March 23, 2005. According to Joint Publication 3-63, entitled Joint Doctrine for Detainee Operations, the term enemy combatant describes a new category of detainee and includes, but is not necessarily limited to, a member or agent of Al Qaeda, Taliban, or another international terrorist organization against which [the] United States is engaged in an armed conflict. Staab, J. B. (2008). Conclusion The premise behind habeas corpus as stated is to bring people into court rather than out of imprisonment. However in my opinion, during the Bush administration, they found a way around this law so as to not have to give a trial. While I want justice like the next person, I would not like to be in a situation where I am being held under the pretence that I a criminal without evidence or a trial. I am not saying that the people held were/are innocent, but I can’t help but to think we cannot be sure. I think that capturing these people were also done out of revenge and thus not urging anyone to think of their right. The 9/11 attack was gut ranching and frankly something I never want to experience again, so I do understand the need to talk less and carry a big stick. From an honest stand point, after 9/11 I was scared to do anything, while I am of no Middle Eastern decent, I look like an Indian person from India, that meant no one ask you where you are from when they look at you suspiciously. Even with all the rights I have in the U. S. A if I was suspected of being suspicious and someone higher and more powerful said that I had dealing with terrorists activities, no one will honestly believe me because of the way I look. Bring me to my point that without a trial we cannot tell for sure of the people being held in Cuba was innocent or guilty without a trail.