Habeas Corpus and the War on Terror

Habeas Corpus and the War on Terror Ian T. Snyder POL 201 Pearl Galano October 20th 2012 Habeas corpus is considered to be one of the most fundamental guarantees of personal liberty we have enjoyed as a country since the inception of our Constitution. However, questions have arisen regarding the proper use of habeas corpus and have been brought into focus in the past decade.

In the years since the September 11, 2001 terrorist attacks, hundreds of people have been detained by the United States government as part of its war on terror. Most of these detainees face indefinite detention and have neither been charged with a crime nor afforded prisoner of war status. Habeas corpus serves to protect citizens against arbitrary arrest, torture, and extrajudicial killings and is a fundamental personal liberty guaranteed by our Constitution and cannot be suspended based on that fact.

Habeas corpus (or writ of Habeas corpus ) is a judicially enforceable order issued by a court of law to a prison official ordering that a prisoner be brought to the court so it can be determined whether or not that prisoner had been lawfully imprisoned and, if not, whether he or she should be released from custody. The right of habeas corpus is the constitutionally bestowed right of a person to present evidence before a court that he or she has been wrongly imprisoned.

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The rights of writs of habeas corpus are granted in Article I of the Constitution, which States, "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. "( Habeas Corpus in times of Emergency; Iowa State Review) A Habeas Corpus petition is a petition filed with a court by a person who objects to his own or another's imprisonment. The petition must show that the court ordering the imprisonment made a legal or factual error.

The right of habeas corpus is the constitutionally bestowed right of a person to present evidence before a court that he or she has been wrongly imprisoned. History The history of Habeas Corpus is ancient. It appears to be predominately of Anglo-Saxon common law origin, although the precise origin of Habeas Corpus is uncertain. Its principle effect was achieved in the middle ages by use of similar laws, the sum of which helped to mold our current policies. Habeas Corpus has since the earliest times been employed to compel the appearance of a person who is in custody to be brought before a court.

Habeas Corpus was generally unknown to the various law systems of Europe which are generally devolved from Roman law. European civil law systems tend to favor collective authority from the top down while the Anglo-Saxon common law tends to favor the individual. As a feature of common law, the right of Habeas Corpus reflects the age old contest between the individual and the state. Habeas Corpus empowers the individual in holding accountable the exercise of the states power to influence liberty. The War on Terror

In the years since the September 11, 2001 terrorist attacks, hundreds of people have been detained by the United States government as part of its war on terror at locations such as the Guantanamo Bay Naval Base in Cuba and Bagram Airfield in Afghanistan. Most of these detainees have faced indefinite detention and have neither been charged with a crime nor afforded prisoner of war Status. Many of these detainees have sought to use habeas corpus proceedings to challenge the legality of their detention.

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 of the sovereign territory of the United States. In 2004, the United States Supreme Court determined that non-citizen detainees at Guantanamo Bay were entitled to file habeas corpus petitions in federal courts. Congress subsequently made a political determination as to the appropriate scope of habeas corpus and passed legislation that, stripped federal courts of jurisdiction to hear habeas corpus petitions brought by enemy combatants.

This ruling was then shortly overturned. The question of whether detainees such as those at Bagram and Guantanamo Bay should have access to habeas corpus is a complex one. It involves issues of territorial jurisdiction, separation of powers, and the status of the individuals. However, at a more basic level, this question should ask as to the nature of the right of habeas corpus and the applicability of the rule of law during national security emergencies. At this level, the situation presented by detainees at Guantanamo Bay or Bagram is not entirely unique.

It represents another example of those situations in which governments have attempted to deny the availability of habeas corpus based on real or perceived threats to national security. On Oct. 17, 2006, President Bush signed a law suspending the right of habeas corpus to persons "determined by the United States" to be an "enemy combatant" in the Global War on Terror. President Bush's action drew severe criticism, mainly for the law's failure to specifically designate who in the United States will determine who is and who is not an enemy combatant.

This however was not the first time in the history of the U. S. Constitution that it’s guaranteed right to habeas corpus has been suspended by an action of the President of the United States. In the early days of the U. S. Civil War Abraham Lincoln suspended writs of habeas corpus. Both presidents based their action on the dangers of war, and both presidents faced sharp criticism for carrying out what many believed to be an attack on the Constitution. President Bush suspended writs of habeas corpus through his support and signing into law of the Military Commissions Act of 2006.

The bill grants the President of the United States almost unlimited authority in establishing and conducting military commissions to try persons held by the U. S. in the Global War on Terrorism. In addition, the Act suspends the right of "unlawful enemy combatants" to present, or to have presented in their behalf, writs of habeas corpus. 1. Jonathan Turley, professor of constitutional law at George Washington University stated, "What, really, a time of shame this is for the American system. What the Congress did and what the president signed today essentially revokes over 200 years of American principles and values. " To which I agree.

The President’s decision to deny the detainees prisoner-of-war (POW) status remains a point of contention, especially overseas with some arguing that it is based on an inaccurate interpretation of the Geneva Convention for the Treatment of Prisoners of War , which they assert requires that all combatants captured on the battlefield are entitled to be treated as POWs until an independent tribunal has determined otherwise. The Geneva Conventions of 1949 create comprehensive legal specifications for the treatment of detainees in war. Members of a regular armed force and certain others share entitled to specific privileges as POWs.

Members of volunteer corps, militias, and organized resistance forces that are not part of the armed services of a party to the conflict are entitled to POW status if they meet four criteria specified in the treaty. Groups that do not meet the standards are not entitled to POW status, and their members who commit belligerent acts may be treated as civilians under the Geneva Convention Relative to the Protection of Civilian Persons in Time of War. ( Terrorism, the Laws of War, and the Constitution – Policy Archive ) These “unlawful combatants” are not afforded immunity for their hostile acts.

A petitioner must be treated as a prisoner of war until a competent tribunal has decided otherwise, and that a military commission may not proceed with their trial. Although some 250 detainees (including three children under the age of 16)13 have been released from the detention facilities at the U. S. Naval Station in Guantanamo Bay, Cuba, and some detainees are being rewarded for cooperation with better living conditions while the status and treatment of detainees who remain in custody continue to be a source of contention. (“Enemy Combatants” Journal, Wuerth) Summary

The Constitution provides Congress with ample authority to legislate the treatment of battlefield detainees in the custody of the U. S. military. The Constitution empowers Congress to make rules regarding capture and to define and punish violations of international law, and to make regulations to govern the armed forces. (Policy Archive) Congress also has the constitutional prerogative to declare war, a power it has not yet exercised with regard to the armed conflict in Afghanistan. By not declaring war, Congress has implicitly redefined what was clearly stated in the Constitution concerning the treatment of detainees.

The Administration has asserted that the war on terror is a new kind of conflict, requiring a new set of rules and definitions. However it is clear that there has been a failure to expeditiously process and, if appropriate, prosecute detainees in the custody of the United States, including those in the custody of the United States. References: 2. Hamdan v. Rumsfeld, 344 F. Supp. 2d 152 (D. D. C. ,2004), rev’d 413 F. 3d 33 (D. C. Cir. 2005), cert. granted 2005 U. S. LEXIS 8222 (Nov. 7, 2005). 3. Habeas Corpus in Times of Emergency: A Historical and Comparative View Brian Farrell University of Iowa College of Law . The War and the Writ Habeas corpus and security in an age of terrorism by Jonathan Shaw January-February 2009 (Harvard Magazine) 5. U. S. -Freed ‘Combatant’ Is Returned to Saudi Arabia, L. A. TIMES, Oct. 12, 2004, at A8; Jerry Markon, Father Denounces Hamdi’s Imprisonment; Son Posed No Threat to U. S. , He Says, WASH. POST, Oct. 13, 2004, at A4. 6. Terrorism, the Laws of War, and the Constitution – Policy Archive www. policyarchive. org/handle/10207/bitstreams/11854. pdf 7. The President's Power to Detain “Enemy Combatants” www. pegc. us/archive/Journals/wuerth_Cinn_power_to_detain. pdf

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