The Writ of Habeas Corpus
According to the US constitution, the right of habeas corpus dictates that the government cannot hold an inmate without charging him/her with a crime. The withheld individual can therefore invoke his/her right of habeas corpus for either release or charging with a crime.The right therefore goes on to underpin some civil liberties such as unlawful detainment and access to representation. Under the British Common Law, habeas corpus as a right prohibited the imprisonment of a free person save the judgment by a jury of his peers, in essence securing the provisions of Magna Carta (Halliday, 2010; Lobban, 2011). Over the years, death row inmates have used the right to gain access to courts, challenging their imprisonment.
With the advent of terror attacks and even before that (1996), Congress passed laws whose aims have been to cut back on the right. With particular reference to Guantanamo Bay detainees label as enemy combatants, the Detainee Treatment Act passed in 2005 eliminated the right to all detainees at the detainment facility (Detainee Treatment Act, 2005; Hawke, 2007). Although an executive order created Guantanamo military tribunals in 2001, the Supreme Court abolished these in 2006, giving way to the Military Commission Act, which established a new military tribunal system for Guantanamo detainees. Noteworthy is the fact that the choice for Guantanamo in the first place was to ensure detainees labeled “enemy combatants” had no access to the federal court system, as well as ensure that the federal constitution had no jurisdiction over the held detainees. Question therefore is, regarding detainees and suspects of terrorism, the writ of habeas corpus: is it evasive, a compromise, or a right?”
The 9/11 attack on the US brought with it numerous laws for the protection of the nation against any other attacks; most considerable among the laws has been the cutbacks and withdrawal of the right of habeas corpus (Chapter 8 The Meaning of Civil Liberties and Rights; Federman, 2010). Even before that, Congress had already passed laws that aimed at reducing the applicability of the writ. In 1996 for instance, a law, through Congress, cut back on habeas petitions especially for death-penalty convicts (Hawke, 2007; Yackle, 2014). The argument for the passage of the law was that appeals invoking habeas corpus had increased, in essence eroding the very efficacy of the death penalty (Hawke, 2007). With such considerations therefore, it is not surprising that Congress and the courts have continued in ruling against the writ, particularly for individuals labeled as adversary in the wake of increased terrorism in both the US and across the world.
In a review of the writ, the nation’s legislature had passed the Detainee Treatment Act in 2005, a law that curtailed the writ of habeas corpus to Guantanamo detainees (Hawke, 2007). This is even as the legislature later passed a law establishing a new system for the detainee’s access to courts. However, while the Supreme Court did indeed open its doors to hear an appeal by 45 detainees at the Guantanamo facility, even as Congress barred this from happening, the federal appeals court ruled against the detainees, with the Supreme Court refusing to review the decision of the appeals court (Federman, 2010; Hawke, 2007). The idea here is that in failing to uphold the detainees’ writ, the courts suspended the right to habeas corpus. Largely the labeling of the detainees as enemy combatants or as war crime perpetrators does indeed warrant their detention. With the continuing war on terror, considering the US’s troops in Afghanistan and Iraq, it is only prudent that the government continues in its deferral of the writ.
This is similar to 1861 suspension of the writ by President Abraham Lincoln during the Civil War when the Union forces captured John Merryman, a Maryland legislature. Although the Supreme Court had ruled in favor of Merryman after the invocation of habeas corpus by Merryman’s lawyer, President Lincoln refused to heed to the court’s decision (Fallon, 2010). Similarly, with the passage of the Military Commissions Act of 2006, President Bush suspended the writ of habeas corpus, even as he came under criticism for signing the law, given the ambiguous nature of the law on who is and who is not an enemy combatant (Federman, 2010).
Compromising on the suspension, giving the detainees access to the writ, which may in turn lead to their release may only help in compromising the security.Currently, the nation is deeply involved in its war against terror, which in many ways makes the nation vulnerable to attacks. Any mistake in releasing the detainees is a risk to the security apparatus of the nation and those of the nation’s allies. It is in such cases therefore that granting the detainees the writ is a compromise to world security, even in the attempt of showing the world the nation’s respect for the rule of law.
Important, however, even in the consideration of the security of the nation, its allies and the world, is the rule of law. Under the constitution, it is the responsibility of the courts to determine whether an individual is guilty or innocent. Moreover, the constitution regards all as innocent until proven guilty. The blanket labeling of individuals as enemy combatants or illegal combatants, and therefore warranting their detention without due process of the law even under the current circumstances of war against terror is unlawful. It is important to consider that such labeling is not only unconstitutional but may also be wrong. Moreover, such action (withdrawal of the right), even under the current war on terror, has great impact on the international view of the US; in fact diminishing the nation’s moral standing abroad (Hawke, 2007). It is under such circumstances therefore that the writ of habeas corpus does indeed become relevant.
While this may be the case, it is noteworthy to consider the impact of granting the writ to the individuals labeled as enemy combatants or illegal combatants. While the moral standing of the nation may be at stake, the economic impact of granting the writ is great. According to Hawke (2007), granting the detainees access to the courts is costly in terms of overburdening the courts in setting up time to hear the cases. Moreover, the action in itself may delay the justice process, and in a way seem like sanctioning terror. In its argument against granting habeas corpus, a 1950 Supreme Court ruling had argued; “the extension of the writ to alien combatants captured abroad ‘would hamper the war effort and bring aid and comfort to the enemy” (Hawke, 2007). Under the current circumstances, the very same argument could apply to enemy combatants and illegal combatants in the current war against terror. Granting these combatants the right will be compromising security, which is tantamount to aiding and abetting terror.
In reviewing the current War on Terror, the 2008 Supreme Court ruling on the Boumediene v. Bush case put a stop to the Military Commissions Act of 2006, which had vanquished the federal courts authority to hear the writ’s petitions, and in a way therefore, giving back the detainees labeled as enemy combatants their right to habeas corpus (Greenhouse, 2008). On the civil liberties of the captives to the habeas corpus, the majority opinion of the judges was that the Detainee Treatment Act fell short of substituting the constitution as it failed to offer the essential procedural securities of habeas corpus (Greenhouse, 2008). Indeed, the opinion of the court, in ruling in favor of giving the detainees their right to habeas corpus, pointed to the fact that despite being at war (War on Terror), the design of the law and the Constitution is such that they can survive and remain forcible even in extraordinary times. The laws therefore remain in force without necessarily twisting them to meet the whims of those in power.
In reaction to the majority opinion over the issue, the four dissenting justices opined that the Detainee Treatment Act provided and guaranteed the protection of habeas corpus, and there was therefore no basis for any further jurisdictive intrusion further from what the Act provided (US Supreme Court, 2008). In their argument, they opined that suspending the habeas corpus for the detainees was necessary given the criminal acts of prisoners after their release from the detention camp. Moreover, the dissenting justices opined that Guantanamo Bay lied beyond the US’s sovereign territory, where the habeas corpus does not necessarily apply (Cornell University, 2008).
What remains to be seen even after such ruling is the impact of the ruling to the nations’ security. While a constitutional right, habeas corpus must take into consideration the nation’s security against the civil liberties of an individual. Thus, according to Justice Roberts, while it is the responsibility of the Supreme Court to uphold the rule of law and ensure the protection of civil rights and liberties of each individual. It is also necessary to consider that it may be necessary to curtail the civil liberties of a few individuals for the greater good of the majority (Greenhouse, 2008).
The debate on granting of habeas corpus however continues to rage. Majorly there is disquiet among legislatures over when the right can be suspended. In the opinion of some legislatures, it is the role of Congress in determining the suspension of the right, particularly in times of great danger and concerns for security in the nation. Moreover, in areas without constitutional jurisdiction, some members consider it the role of Congress in suspending the writ (Hawke, 2007). This is even as some see it as a violation of human rights, and projecting the nation badly in the international scene.
Additionally important in this matter is the role of the president as the Commanding officer, and therefore his/her role in suspension or granting of the writ. According to Fallon (2010), in the wake of 9/11, the president must “advance a vision of expert, decisive, and capacious presidential leadership as both constitutionally authorized and necessaryto preserve domestic security in a terrifying world” (p. 372) as seen by the Bush administration. This as a matter of fact, includes the withholding of the writ, particularly for those outside the confines of US territory.
At the core of all these arguments remains the fact that habeas corpus is an elusive ideology and right, particularly in an attempt to strike a balance between civil liberties and national security. Evidently, habeas corpus remains integral to civil liberties; however, in the wake of an unending war on terror, national security must prevail, even if it means a poor international image projection. The rule of law requires the protection of citizens and their civil liberties. This extends to providing national security, which can only be possible through the rule of justice. The law moreover allows the suspension of civil liberties and rights under certain circumstances. The War on Terror, therefore does qualify as a circumstance warranting suspension of certain civil liberties to guarantee national security.
Terror breads insecurity within a nation. At the behest of terror therefore, the fate of some liberties balance on the determination of the necessity of these liberties. Habeas corpus, as a right remains dependent on numerous factors that require consideration before warranting or suspending it. Indeed, therefore it is evasive in that guaranteeing it may have repercussions, thus compromising national security, much as it is a right guaranteed in the constitution.
Chapter 8.The Meaning of Civil Liberties and Civil Rights
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Detainee Treatment Act of 2005, Pub. L. No. 109–148, §§ 1001–1006 (2005).available at
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Federman, C. (2010). Habeas Corpus in the age of Guantanamo.Belgrade Law Review, LVIII(3), 215-234
Greenhouse, L. (2008). Justices, 5-4, back detainee appeals for Guantanamo. The New York Times. Retrieved from http://www.nytimes.com/2008/06/13/washington/13scotus.html?pagewanted=all&_r=0
Halliday, P., D. (2010). Habeas Corpus: from England to Empire. Cambridge, MA: Harvard University Press
Hawke, A. (2007, June 29). Primer: Guantanamo detainees’ rights.National Public Radio. Retrieved from http://www.npr.org/templates/story/story.php?storyId=11600605
Lobban, M. (2011).Habeas Corpus.International Journal of Law in Context, 7(2), 257-269
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Yackle, L. (2014). The new habeas corpus in death penalty cases. American University Law Review, 63(6), 1791-1853