Habeas Corpus: The Ultimate Writ of Liberty

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22 February 2016

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In time of war, many quick and unpopular decisions are inevitable. The decisions the President has to make must be in the best interest of the country, and of the world. Although war is unpopular with many people, it is unavoidable in certain circumstances. During wartime, many American people want known enemy combatants to have their rights upheld while being detained. Unfortunately, this is not always feasible. One has to understand that the taking of the liberty of a handful of people to save the lives of thousands, or even millions of people is an unavoidable act. When a citizen of a foreign country, or a citizen of America, who has turned to terrorism, goes to war with America, the rights given to American citizens by the Constitution should be denied. Wartime is never pleasant and it has the potential to causes the destruction of billions of dollars’ worth of property. However, the loss of life is much more devastating than the loss of property. During war, there are lawful enemy combatants captured by the opposing force and held for information or as bargaining tools. These lawful enemy combatants are known are prisoners of war (POW). If the enemy combatant whom is captured is not entitled to prisoner of war status because he or she does not meet the definition of a lawful combatant as established by the Third Geneva Convention, the prisoner is known as an unlawful enemy combatant (EC). In 2001, when President George W. Bush declared war on terrorism, the war was not against a country but against a particular group. Under the rules of the Third Geneva Convention, terrorists captured during the war on terrorism do not fit the criteria to be labeled a POW. Therefore, these combatants are considered unlawful enemy combatants not bound by the protection of the Third Geneva Convention. Since the war on terror started in 2011, there have been a number of lawsuits filed against the American Government claiming the detainees at Guantanamo Bay were having their rights to Habeas Corpus violated.

A Writ of Habeas Corpus instructs a government, police, or anyone who is detaining an individual from his or her liberty, to immediately bring the accused before the court so the legality of the detention may be examined (A brief history of habeas corpus, 2005). However, President Bush declared the detainees as unlawful enemy combatants, thusly denying their right to Habeas Corpus. In the United States Constitution under Article One, Section 9, clause 2, it 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.” (Transcript of Constitution of the United States, 1787). The fundamental right given to detainees by the United States Constitution, also known as Writ of Habeas Corpus, is nothing new to the world. The origins of Habeas Corpus can be dated back to British common law (Schultz, 2011). The Habeas Corpus Act was passed by British Parliament in 1679 and is said to have origins of Anglo-Saxon descent dating back to the middle ages (A brief history of habeas corpus, 2005). According to Sir William Blackstone, the first use of Habeas Corpus can be dated back to 1305. However, there were other Writs with the same influence being used in the twelfth century, which precedes the Magna Carta in 1215 (A brief history of habeas corpus, 2005). Habeas Corpus was first established in the United States by statute in the Judiciary Act of 1789. This lawful Writ applied only to detainees in custody by officials of the Executive Branch of the federal government, and not to those held by state governments.

However, Article One, Section 9, clause 2 does not give the right to detainees to exercise their right to the Writ of Habeas Corpus; rather it instructs Congress against suspending a person’s right unless it is in a case of rebellion, invasion, or public safety. Therefore, in America, if a person is being detained and they do not feel the detention is legal, the detainee has the right to file a Writ of Habeas Corpus. There have been only two instances when the President found it necessary to suspend the Habeas Corpus Act in light of civil rights (Robinson, 2011). In the early days of the United States Civil War, President Abraham Lincoln suspended Writs of Habeas Corpus on April 27, 1861. President Lincoln felt it was necessary to suspend Habeas Corpus along the railroad line between Philadelphia and Washington. Eventually, in the fall of 1862, President Lincoln suspended Habeas Corpus nationwide (Robinson, 2011). In recent history, President George W. Bush suspended Writs of Habeas Corpus for the enemy combatants held at Guantanamo Bay by signing into law the Military Commissions Act of 2006. Both Presidents came under fire for their decisions. However, Lincoln’s was taking the right of Habeas Corpus away from American citizens while Bush took the right away from non-American citizens or citizens who were in rebellion against the United States. One of the biggest arguments is whether enemy combatants have the right to file a Writ of Habeas Corpus in a federal court.

Although Habeas Corpus is a fundamental right given to the American people in the Constitution, the terrorist attacks of September 11, 2001 brought new theories to the forefront. The Bush Administration’s choice to detain enemy combatants at Guantanamo Bay without trial tested the latitude and assurance of this constitutional right. The Bush Administration established long ago their view that foreign terrorists are not entitled to American basic rights (Justice and Gitmo; The high court’s decision to weigh habeas corpus for detainees is a step toward restoring trampled freedoms, 2007). The Supreme Court heard the case Boumediene v. Bush and made a ruling on this case on June 12, 2008. Boumediene v. Bush was a Writ of Habeas Corpus filed in a civilian court of the United States on behalf of Lakhdar Boumediene. Boumediene was a naturalized citizen of Bosnia and Herzegovina being held as an enemy combatant by the United States at Guantanamo Bay. When the ruling came down from the Supreme Court, it was a five to four with the majority holding the detainees at Guantanamo Bay did have the right to file Writs of Habeas Corpus under the United States Constitution.

There were three factors taken into consideration when determining the final decision: the citizenship and status, along with the adequacy of the process that status was determined, the sites where apprehension and detention took place, and the obstacles in resolving the detainees right to the Writ (Boumediene v. Bush, 2008). The Supreme Court ruled the United States, by virtue of its jurisdiction and control over Guantanamo Bay, the country maintains de facto sovereignty over the territory, while Cuba retained ultimate sovereignty over the territory. Therefore, the aliens detained at Guantanamo Bay were enemy combatants and were entitled to the Writ of Habeas Corpus (Boumediene v. Bush, 2008). This ruling reversed the lower court’s decision, which stated that constitutional rights do not extend to the detainees at Guantanamo Bay. Associate Justice Kennedy wrote the opinion of the court, with Justices Stevens, Souter, Ginsburg, and Breyer joining. Justice Souter also filed a concurring opinion with Justice Ginsburg, and Breyer joining. However, Chief Justice Roberts filed a dissenting opinion with Scalia, Thomas, and Alito joining. Justice Scalia also filed a dissenting opinion with Roberts, Thomas and Alito joining. In Chief Justice Robert’s dissenting, he states the Boumediene v. Bush case should have not even made it to the Supreme Court for a ruling on Habeas Corpus until the lower court first decided if the detainees had a legal right to file in a United States Court (Boumediene v. Bush, 2008). In a time of war, the president is given an overwhelming amount of latitude in making decisions. One enormous decision that has to be made is the taking of liberty from an individual. With the understanding that thousands to millions of lives could be saved by taking the liberty of a handful of people, it is, at times, an unavoidable act. Constitutional rights should become voided when an act of terror is unleashed on United States soil by either a foreign citizen or a citizen of America. Being able to commit a terrorist act and then hide under the protection of the civil liberties of another country is nothing more than an act of a coward.

A brief history of Habeas Corpus. (2005, March 09). Retrieved November 04, 2012, from BBC News: http://news.bbc.co.uk/2/hi/uk_news/magazine/4329839.stm Boumediene v. Bush, No. 06–1195 (Supreme Court of the United States June 12, 2008). Justice and Gitmo; The high court’s decision to weigh Habeas Corpus for detainees is a step toward restoring trampled freedoms. (2007, July 08). Los Angeles Times, p. M.2. Retrieved from http://search.proquest.com/docview/422272051?accountid=32521 on November 05, 2012 Robinson, K. (2011, June 26). Historians won’t convict Lincoln for suspension of Habeas Corpus. McClatchy – Tribune Business News. Retrieved from http://search.proquest.com/docview/873651368?accountid=32521 Schultz, D. (2011, July). Habeas Corpus after 9/11: confronting America’s new global detention system. Choice, 48(11), pp. 2190-2191. Retrieved November 05, 2012 from http://search.proquest.com/docview/877038974?accountid=32521
Transcript of Constitution of the United States. (1787). Retrieved from Our Documents: http://www.ourdocuments.gov/doc.php?doc=9&page=transcript

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StudyScroll. (2016). Habeas Corpus: The Ultimate Writ of Liberty. [Online]. Available at: https://studyscroll.com/habeas-corpus-the-ultimate-writ-of-liberty-essay [Accessed: 26-Sep-2023]

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