Civil Liberties, Habeas Corpus, and the War on Terror

Last Updated: 16 Jun 2020
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The history of the Right of Habeas and the war on terror, it stated in the article The Tissue of Structure by Anthony Gregory “It has been celebrated for centuries in the Anglo-American tradition as a means of questioning government power. It is probably the most revered of all of the checks and balances in our legal history—as William Blackstone commented,” “the most celebrated writ in English law” (Gregory, A. 2011, 2nd par. ). The Habeas corpus is to protect the individual from being imprisoned wrongly and due to a fair trial.

Although, questions arise regarding whether proper use of habeas corpus been brought into focus over the last ten years. In this essay I will explore the history of Habeas Corpus and how it has evolved over the many years. I will try to briefly explain how the habeas corpus originated and the role the U. S. has and the current actions being taken with it. I will look into the Bush administration and the way the way they dealt with habeas corpus during his administration. Let’s look at the history of habeas corpus it stated in an article entitled Habeas Corpus The most extraordinary writ that the history of “Habeas Corpus is ancient”. Although the precise origin of Habeas Corpus is uncertain of its antiquity” (Robertson, J. 2008). The primary effects were achieved during the middle ages by the use of a variety of writs, which gave a comparable effect as the modern writ and current policies. It also stated that “the practice surrounding the writ has evolved over time” (Robertson, J. 2008, para. 2). Since the earliest of times the Habeas Corpus was designed to bring forth any person in custody be brought before the court.

While the Habeas Corpus was originally the privilege writ of a King and his courts, over the course of hundreds of years’ time has allowed it to evolve into a privilege for the person being detained, or a person or someone acting on his or her interest. Meanwhile Habeas Corpus was generally unknown by the diverse civil law systems of Europe which were devolved from the Roman or Justinian law and the current war on terror. While the civil law systems of Europe favor authority from the top down, the Anglo-Saxon common law favors the individual.

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Although the Habeas Corpus is an attribute of common law, let it be understood that it is an important one; the right of Habeas Corpus reveals the challenge between the individual and state. “Habeas Corpus empowers the individual in holding accountable the exercise of the state’s awesome power to restrain liberty” (Robertson, J. 2008, para. 3). The original purpose behind the Habeas Corpus “was to bring people to the court rather than out of imprisonment” by the year 1230, this would become a well- known characteristic of English law.

Which becomes known as “the Great Writ” the systematization into the English law would come by way of Parliament through Habeas Corpus act of 1641. This generated what is known today as the Darnell’s case, during the case five English noblemen were thrown into the dungeon for refusing to fight for their country’s war with France and Spain. Giving the fact that the men filed suit, King Charles I refused to give details as to why they were imprisoned, “stating that the law did not require the King to provide any justification as to why they were being imprisoned,” (Jackson, A. 010) The Kings decision generated a deafening outcry from the public, causing the Parliament to seek action immediately the following year.

The Habeas rights were expanded by the Parliament several years later with the Habeas Corpus Act of 1679, making it mandatory that "charges to be brought within a specific time period for anyone detained for criminal acts" (Jackson, A. 2010). By the year 1765, the habeas corpus was securely rooted within the footing of English law, William Blackstone describes the Great Writ as “a second magna carta, a fortification of our liberties” (Jackson, A. 010). The Habeas Corpus being a deep-seated English right has navigated the Atlantic Ocean when our founders integrated the doctrine of Habeas Corpus into the U. S. constitution. It also stated in the article that "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" (Jackson, A. L. 2010). This is known as the “Suspension Clause” it is a provision that places the ability to suspend habeas corpus in the hands of the congress only in the event of rebellion or an invasion.

It goes on to state that despite the clarity of the clause, the American debate on habeas corpus is just beginning. (Jackson, A. 2010). However, being the Habeas Corpus has a long history, being a common law of the land that throughout history the Habeas Corpus has only been authorized to be suspended four times in our history, 1. ) President Lincoln put forth an autarchic suspension during the Civil War, 2. ) post-Civil War Congress would authorize President Grant to suspend the Ku Klux Klan act. 3. ) 1902 when the rebellion in Philippines and 4. comes in 1941 after the attack on Pearl Harbor. (Jackson, A. L. 2010) It would seem that the “Great Writ” of habeas corpus was established to protect our civil liberties; it ensures us that no one could be imprisoned without having a fair trial.

From the late seventeenth century the English constitution was common law and protected the rights of the Englishmen and since 1903 it had been a flawless solution. After the Johnson v. Eisentrager, government officials relying on the court’s decision deemed that holding enemy combatants outside the U. S. territory would inadmissibly keep individuals from filing, claims aimed at the habeas corpus review along with other things. In 2002 the United Stated started conveyance of the captured enemies to Camp X-Ray located at Guantanamo Bay, this causing the legal position of the government were to be tested immediately as the enemy combatants started to arrive. February 2002, claim submissions of the writs of habeas corpus starting coming in from the prisoners of Guantanamo Bay Camp X-Ray.

One question one would ask is how will the court respond to claims being filed by the prisoners? The answer to the question is that, answers would come as fast as the writs, they came with deviating answers. It states that during the Coalition of Clergy v. Bush, The U. S. Central division of the District of California would approximate the issue in lue of government expectations; although they relied on the Johnson v. Eisentrager decision they deemed that the court would hold several U. S. itizens 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 would establish that, although a petitioner may have just cause, the simply lacked the jurisdiction to accommodate. Giving the fact that the Military Commission Act, it does not fully guarantee the full protection of American citizen constitutional rights for the Guantanamo prisoners.

Although Congress tried due process for enemy combatants it would come under major scrutiny. It goes on to state in the article that “The faint beat of the drum that once existed has now grown to a considerable pounding rhythm. The Court expressed the statutory right of foreign nationals detained at Guantanamo Bay to file habeas corpus claims in federal courts regardless of the geographic location of their detention” and that to suspend the "Great Writ" and ensure a proper level of protection is afforded to all enemy combatants” (Jackson, A. L. 2010).

Let’s take a look into what has transpired since the 9/11 terrorist attacks, In 2006 Congress has passed the Authorization for Use of Military Force, this grants the President the power “to use all necessitous and suitable force” for all those who were engaged or involved or may have gave sanctuary to any enemy combatants (Pond, B. C. 2009). Let’s take a look as to why and how the reasoning for the U. S. confinement policy deviates from the Bush administration’s order of the comprehensive military order on November 13, 2001, this was intended to preside over the “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism”(Staab, J. B. 2008).

Rumor has it they modeled this after President Roosevelt’s military order during World War II, However President Bush’s order put limits on the use of military commissions any non-citizen for whom the president determines: (1) is or was a member of al Qaeda, (2) has committed, aided or abetted, or conspired to commit terrorist acts, or (3) has knowingly harbored one or more of these individuals. (Jackson, A. L. 2010). In the final conflict with Boumethene v. Bush the supreme court ruled in favor of 5 to 4 that the detainees of Guantanamo Bay were indeed allowed to exercise the writ and were granted use of the justice system. Supreme Court Justice Anthony Kennedy stated in the majority opinion: The Constitution is created to survive, and to stay in forced in times of a threat to National security. The Supreme Court brings an end to one of the Nation’s injustices, in giving the prisoners of Guantanamo Bay the justice they are entitled to.

This also gives us a lesson on how delicate our constitution rights are in. The role of the President and Commander in chief is Article II of the Constitution states "The executive Power shall be vested in a President of the United States of America. " Section 2 of Article II states that "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States. " (Levin, 2012) I believe the Role of President would be one of the hardest jobs.

Being all the hard decisions he has to make. When dealing with Habeas Corpus and the role of commander-in-chief I wouldn’t want to be in his shoes, because I wouldn’t have a clue as to handle the situation of the war on terror and enemy combatants. Congress’s role in habeas corpus as to when it can be suspended, this is a good thing in them having the right to override the Presidents decision for suspension, we need someone looking out to make sure he isn’t making bad decision or poor judgement.

The role of the Supreme Court seems to be the deciding vote to make sure everyone gets their day in court and the right to a fair trial. (Levin, 2010) So in conclusion, Although this has been the most difficult essay I have had to write, I believe the Habeas Corpus is an essential part of our constitution and civil liberties, because you know the ole saying “innocent until proven guilty” and everyone deserves their day in court and has the right to a fair trial.

My thoughts on the war on terror, this is something I don’t fully understand, my question is why we get involved in the problems of other countries why should we get involved if it doesn’t affect us? Why send our soldiers to get killed over another countries problems? Who would have thought that our civil liberties could be so complicated. Why not keep them home and fix some of the problems here at home.

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Civil Liberties, Habeas Corpus, and the War on Terror. (2017, May 26). Retrieved from

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