The Right of Habeas Corpus in the Context of the War on Terror essay
Habeas corpus is one of the means of providing strong protection for the individual liberty of people. It is a civil procedure that has a long and colorful history of evolution. The term “habeas corpus” stands for a “command, issued as a means of interlocutory process, to have the defendant to an action brought physically before the court” (Farbey et al., 2011, p. 2). Following the attacks of September 11, 2001, the right of habeas corpus, including to whom it should be applied and where it should be used, was raised in the context of the war on terror. Habeas corpus, as a legal proceeding, is considered to be a significant remedy for prisoners. According to David Andrew Schultz (2009), prisoners have the right to “ask a court to evaluate the legality of his or her detention” (p. 334). It is very important for any individual to understand the legal justification for detention. Thesis statement: The application of habeas corpus has changed since its origin because of certain changes in political environment, but its major purpose remains unchanged – to protect individual liberty and human rights. As a result, the right of habeas corpus in the context of the war on terror continues to be in force and effect.
The historical evolution of the writ of habeas corpus
The historical evolution of habeas corpus can be explained in English and American traditions. Habeas corpus stands for the “order to bring a person into the custody of the court” (Farbey et al., 2011, p. 1). The origins of habeas corpus refer to the early 13-th century, when the use of habeas corpus was focused on putting an individual to prison rather than to setting free. To put it more exactly, habeas corpus was adopted to ensure the physical presence of an individual in the court at a set time (Farbey et al., 2011; Schultz, 2009). Historians state that in some situations, it was used to “signify a command to the sheriff to bring a person accused of a crime before the court” (Farbey et al., 2011, p. 2). At the early stage of the history of habeas corpus, this term was not associated with the idea of individual liberty.
In fact, there were three important medieval writs, which played an important role in the development of the idea of liberty: “de homine replegiando, mainprize and de odio et atia” (Farbey et al., 2011, p. 3). These writs were applied to special procedures, enabling prisoners to get out on bail. In this case, the court did not give explanation of the cause of imprisonment. So, the legality of imprisonment could be determined in case of habeas corpus.
The explanation of the evolution of habeas corpus within the English tradition is based on the adoption of the English common law. According to Sir William Blackstone, an outstanding English lawman, the habeas corpus was first applied by the court in 1305 (Schultz, 2009). Some other historical evidence shows that it was first recorded by Magna Charta in 1215 (Schultz, 2009). Thus, the original judicial application of the law was in favor of the King as the initial purpose of the habeas writ was to call prisoners to court to testify. The changes in the political environment through the ages influenced the application of the habeas writ (Primus, 2010). The present purpose of the law is to provide protection against arbitrary detention of individuals by the law enforcement agencies. American tradition includes the general meaning of the right of habeas corpus in the U.S. Constitution and its positive relationship to the protection of other civil liberties and rights.
There are many examples from the U.S. history that demonstrate the cases of the suspension of habeas corpus, including the Civil War, the WWI cases. For example, in 1862, President Lincoln suspended the habeas writ for persons who were arrested for disloyal practices. The suspension of habeas corpus can be applied to the present situation because of the Constitution’s clauses that authorize the U.S. government to have power in terms of the use of the habeas writ. The Article I, Section 9 of the U.S. Constitution refers to the congressional authority, which can be applied to present day cases of war on terrorism. The writ of habeas corpus is still an important component of the law, although the debates surrounding it are still prevalent.
Analysis of the relevance of habeas corpus to the contemporary U.S. situation
during the war on terror
Analyzing the relevance of habeas corpus to the contemporary U.S. situation during the war on terror, it is necessary to assess the impact of the writ on the persons characterized by as enemy combatants or illegal combatants. Due to the writ of habeas, a person can be released from unlawful detention. Habeas corpus played an important role the cases that had direct relation to the war on terror not only in the U.S., but also in the United Kingdom, where it was alleged that “detainees have been held in breach of international human rights law standards” (Duxbury, 2013, p. 85). There are several cases that are relevant to the habeas writ, including Rusul v. Bush (2004), Boumediene v. Bush (2008), and other cases. Military commissions were used to trial detainees. In many cases, prisoners were limited to a ‘single habeas petition” (Slomanson, 2010, p. 544).
The U.S. Supreme Court’s interpretation of the right of habeas corpus
with respect to enemy combatants or illegal combatants
The U.S. Supreme Court’s interpretation of the right of habeas corpus with respect to enemy combatants or illegal combatants can be analyzed by means of the case Boumediene v. Bush, in which the views of the five justices made up the majority. The petitioners in the case were detained foreigners who were withdrawn by the court, violating the Suspension Clause of the Constitution. The 5-4 opinion court decision authored by Justice Kennedy was reversed by the U.S. Supreme Court, holding that the petitioners had a constitutional right to habeas corpus. Besides, the views of the four dissenting justices should be taken into consideration.
In general, the writ of habeas can be described as a wartime practice with respect to enemy combatants. However, Americans assisting the enemy during war actions have always been treated as “traitors subject to criminal process” (Gregory, 2013).
Evaluation of four perspectives relating to habeas corpus
The issue regarding habeas corpus has been discussed by the justices of the Supreme Court, leaders in other branches of government, and commentators in both the academic and popular media.
The role of the President as Commander-in-Chief
The role of the President as Commander-in-Chief regarding habeas corpus is based on his constitutional authority to provide protection to the nation and national security in the most suitable manner. It has been found that the President has the right to exercise his Commander-in-Chief authority in “conjunction with the complete support of Congress” (Gregory, 2013, p. 368).
The role of Congress in determining when habeas corpus can be suspended
The role of Congress in determining when habeas corpus can be suspended is crucial. According to researchers, “the Suspended Clause of the Constitution allows Congress to suspend the writ of habeas corpus “in Cases of Rebellion or Invasion” of “the public safety… requires it” (qtd. in Blum, 2008, p. 99). If the attacks of September 9, 2001 can be viewed an invasion, it is possible to respond to this invasion by suspending the writ (Redish & McNamara, 2010). The threat to the nation posed by terrorism can be regarded as invasion, although there is no this occasion in the US Constitution. Nevertheless, Congress has the right and power to suspend habeas corpus as it is the branch of the US government. In the case of Boumediene v. Bush, Congress passed Military Commissions Act of 2006, to address the detention of the foreigners at Guantanamo Bay. This act cannot be viewed as the formal suspension of habeas corpus (Farrell, 2011).
The role of the Supreme Court in protecting civil liberties, including the judicial philosophy which should guide the Court in this role
The U.S. Supreme Court holds that the privilege of habeas corpus permits the prisoner to have an opportunity to show that “he is being held pursuant to the erroneous application or interpretation of relevant law” (Blum, 2008, p. 90). In the case of Boumediene v. Bush (2008), the foreigners at Guantanamo Bay enjoyed the right of habeas corpus, bringing their petition to the federal court (Neuman, 2010). This fact means that foreigners have the right to file habeas corpus petition as the U.S. citizens do. This is a so-called procedural remedy
My personal philosophy, values, or ideology about the balance between civil liberties and national security in the context of an unending war on terror
I believe that the common laws on terrorism must be flexible, and the law of habeas corpus should be followed. Today the USA is a well-developed country, which has an opportunity to capture a criminal anywhere on the globe. Besides, the President’s power is effective to deal with war on terrorism. However, I completely agree with Justice Thomas who states that “the court’s ability to keep up with the president must stay frozen forever” (Gregory, 2013, p. 370). The nature of the common law in the judiciary depends on the presidential wartime powers. The Presidency was adopted by the U.S. Constitution that provides the application of the common law practices, including the writ of habeas corpus. My personal philosophy is based on promoting justice in all spheres of human activity, especially in the judiciary and governance. I believe there should be the balance between civil liberties and national security in the context of an unending war on terror. In time of war on terror, it is necessary to avoid conflicts which affect national defense.
Conclusion
Thus, it is necessary to conclude that habeas corpus has always been an important writ aimed at protecting individual liberty from unlawful governmental actions. The major goal of habeas corpus is to keep executive governmental agencies and departments accountable to their judiciary. American national government plays a crucial role in examination of civil liberties in the context of the war on terror. Today the U.S. has to deal with the war on terrorism which often leads to the problems connected with striking a balance between individual liberty rights and national security. The right of habeas corpus in the context of the war on terror should continue to be in force and effect.
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