Habeas Corpus

RUNNING AHEAD: THE RIGHT OF HABEAS CORPUS ON THE WAR OF TERROR. POLITIC 201 Monday, April 29, 2013 RUNNING AHEAD: THE RIGHT OF HABEAS CORPUS ON WAR TERROR. Habeas Corpus. The meaning of Habeas Corpus comes from a Latin base meaning “you have the body” (National Archives). It refers to the right of a person to question his/her incarceration before a judge, intriguingly; the violation of the right of habeas corpus has not been the most severe of civil liberties granted not to Americans only, but many other countries. The right of Habeas Corpus protects a prisoner.

It allows a prisoner to point that his or her integrally guaranteed rights to fair treatment in a trial have been broken upon. The most recent controversy regarding habeas corpus was during the Bush administration when hundreds of suspected Afghan and Iraqi terrorists were imprisoned. (http://www. enotes. com). While telling about the Habeas Corpus and the war on terror, my main focus in writing this essay will be on the general meaning of Habeas Corpus, its relationship with civil liberties, its American and English history, its evolution in U.

S history of suspension. I will show the relevance of Habeas Corpus to the contempory U. S situation during the war on terror. I will also talk to about its interpretation by the U. S Supreme Court with the respect to “enemy combatants” or “illegal combatants”. To finish, I will give my own evaluation of various perspective on this topic expressed by justice of the Supreme Court, leaders in other branches of the Governments and commentators in both popular and academic media.

By definition, Habeas Corpus is one of a variety of writs that may be issued to bring a party before a court or judge, having as its function the release of the party from unlawful restraint or the right of a citizen to obtain such a writ. (http://www. habeascorpus. net). The RUNNING AHEAD: THE RIGHT OF HABEAS CORPUS ON WAR TEROR general meaning of Habeas Corpus in the U. S Constitution is the right by which someone can go to court and protest the validity of his/her imprisonment. The right of Habeas Corpus is the oldest human right in Anglo-Saxon law.

The concept originally becomes law in the 17th century in England when Catholics were considerated disloyal to the throne of King Charles II. It precedes the Magna Carta in 1215. It isn’t an original American concept. It becomes law in the west when England parliament decreed the Habeas Corpus Act of 1679 (http://www. constitution. org). The idea of Habeas Corpus may be Anglo-Saxon in its earliest use, but it was adopted by the U. S policy makers around 1789. According to Robert Searles Walker, the right of habeas corpus has been a bulwark against the unlimited excessive power of the executive power first in England the in the U.

S. throughout is U. S history, the Habeas corpus has continued his English tradition to be a check on executive power and upholding the separation of power. Recently, the writ of habeas corpus has been jeopardized by the indefinite incarceration of the alleged “enemy combatants” in Guantanamo bay, Cuba as part of Bush administration’s “war on terror” under the Military Commission Act of 2006. There are some examples of suspension of the right of habeas corpus in the U. S history. First, it was suspend by Abraham Lincoln during the civil war.

Lincoln used the Article I, Section 9 of the Constitution stating that “the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion and invasion the public safety may require it,” generally called the suspension clause. The right of habeas corpus as suspended for public safety. There were resistances about this suspension because people believed that the power of suspension of habeas corpus as in the hand of congress not the president. Critics say that this act was unconstitutional.

Lincoln defended himself by saying that constitution doesn’t say who has RUNNING AHEAD: THE RIGHT OF HABEAS CORPUS ON WAR TERROR. the right to suspend it or no. Claiming on July 4 that “the Constitution itself, is silent as to which, or who, is to exercise the power” of suspending the writ. He quoted the section 9 of the first article “All legislative Powers herein granted shall be vested in a Congress of the United States”. “Lincoln suspended the right of habeas corpus without congressional authorization during the civil war.

After President Abraham Lincoln, there are other presidents who suspended that right. President Ulysses S. Grant suspended the writ, pursuant to congressional authorization, during Reconstruction. The U. S. military has also ignored habeas corpus at least once, albeit during a situation of martial law during wartime”. (http://ir. lawnet. fordham. edu). On October 2006, President Bush signed a law suspending the right of habeas corpus to person” determined by the United States” to be an “enemy combatants” in the global war on terror.

Like President Lincoln, president Bush actions dragged severe criticism mainly because there was no law in the United States that specially chose who should be or not an “enemy combatant. ” Bush used the Military Commission Act of 2006 to justify its action. President Bush and President Lincoln based their actions on the danger of war and was both criticized for attack to the constitution. In the years since the terrorist’s attacks of 9/11, numbers of people have been detained by the U. S Government as part of its” war on terror” at the Guantanamo naval bay in Cuba and Bagram Airfield in Afghanistan.

Most of those detainees are in indefinite detention and have neither been with a crime nor qualify with the status of war prisoner. The detainees have decided to use habeas corpus to challenge the legality of their detention, but “the United States government initially took the position that habeas corpus was not available to detainees because of their status as “enemy combatants” and their location outside the sovereign territory of the United States”. (http://digitalcommons. pace. edu). RUNNING AHEAD: THE RIGHT OF HABEAS CORPUS ON WAR OF TERROR. The U.

S Supreme Court decided at the end of his 2003-2004 term that U. S courts have jurisdiction to hear challenge on account of almost 550 persons detained in Guantanamo in connection with the war against terrorism. On June 12 2008, the Supreme Court ruled in Bourmediene v. Bush that Guantanamo captive were authorized to access the U. S justice system. Justice Anthony M. Kennedy for the court’s liberal justice writes the majority opinion. He wrote: “The laws and Constitution are designed to survive, and remain in force, in extraordinary times”. President William H. Neukom said in a tatement that the ruling “helps restore the credibility of the United States as a leading advocate and model for the rule of law across the globe. ” “Habeas corpus is the cornerstone of the rule of law in the United States,” he said. “Adhering to this fundamental tenet of our legal system will simply require that we provide a fair process for determining which detainees should continue to be detained. ” (http://www. abajournal. com) Kennedy majority ruling found that habeas corpus rights apply to the detainee and that the government has not shown an appropriate deputy.

The minority opinion with Chief Justice John Roberts as the leader, called the CSR Tribunals the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. He was joined in the dissent opinion by Samuel Alito, Clarence Thomas and Antonin Scalia. The Supreme Court brought an end to this issue by giving justice to the men held at Guantanamo naval bay. It gave them the writ of habeas corpus, the Supreme Court recognizes how important those laws established hundreds of years ago by the framers are essential to American natural law.

RUNNING AHEAD: RIGHT OF HABEAS CORPUS ON WAR OF TERRROR Writ of habeas corpus is a judicial mandate to a prison official giving an order that an intrinsic is brought to the court so that he can be determinate if whether or not he/she is imprison unlawfully and determined if he/she should be release or remain in custody. The president as the commander in chief has a responsibility to protect the American people. Most of the time those who are quality as enemy combative aren’t American citizens so, removing them from their countries should be to face justice. They should be punish by an international court if found guilty.

Congress should be watching for the security of the country as well, it should make sure that civil right and liberties are protected and respected. It should make sure that no one goes against our constitution. They should be responsible to determine the guilt or innocence of individual on trials. The Supreme Court responsibility is to determine and protect civil liberties of all individuals as well as to assist in defending national security and make sure that other branches of the government do not overuse their power to go against constitution or use constitution for their personal interest.

National security shouldn’t come at the expense of civil liberties, but they should be united in the sense that individuals are granted their civil liberties in order to better obtain the aspects of national security. There is no reason to weaken one aspect of our constitution and civil liberties to strengthen the other. In conclusion, habeas corpus refers to the right of a person to question his/her incarceration before a judge. The paper was about habeas corpus and the war on terror. Habeas corpus is a concept that has it origin in England and was later on adopted by U.

S. During his RUNNING AHEAD: THE RIGHT OF HABEAS CORPUS ON WAR OF TERROR. evolution, this right has been suspended many times first by president Lincoln during the civil war then, by president bush after the terrorists attacks of 9/11. Both president actions were considerated unconstitutional by some critic. Some justice believed that president Bush action was wrong while other agree with him and later on the Supreme Court based on the constitution and the civil liberties gave the right of habeas corpus to the persons detained in Guantanamo bay naval in Cuba.

Personally I think the people detained in prison are not the real pillars of the terrorism. In matter of facts e face terrorist attack everyday around the word. It is just hard to say if this war on terror will end one day because most of them are based on politic reason, but it is sad to see how many innocent people die every around the world. The people who are not even concern by politic. Habeas corpus in the cornerstone of American constitution that why the supreme court give that right to those detainee to maintain the American status which is known as the country of freedom and of respect of civil liberties.

RUNNING AHEAD: RIGHT OF HABEAS CORPUS ON WAR TERROR References Suspension of Habeas Corpus from http://ir. lawnet. fordham. edu Habeas Corpus in Times of Emergency: A Historical and Comparative View retrieved from http://digitalcommons. pace. edu/cgi/viewcontent. cgi? article=1011&context=pilronline& Supreme Court Rules Guantanamo Detainees Have Habeas Rights retrieved from http://www. abajournal. com/news/article/supreme_court_rules_guantanamo_detaine

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