In the wake of 9/11 and the beginning of the War on Terror, the American public has developed a much more complex relationship with its government than ever before. Given the fears and security risks inherent to a non-government organization with no lines of citizenship, yet significant intent to harm the American people, many changes and reevaluations of civil liberties have taken place. Most important among these is the writ of habeas corpus, which has slowly been eroded in the past decade between Guantanamo Bay and the PATRIOT Act, leaving American citizens worried about their own freedom and sovereignty being threatened not just by outside forces, but their own government. While the suspension of habeas corpus is not a new phenomenon in American history, its circumstances and consequences today have far-reaching implications for the extent to which civil liberties are granted when national security is at risk.
Before examining its context in the War on Terror, it is important to know where habeas corpus comes from, and its relation to the United States Constitution. In essence, habeas corpus involves the requirement than a person put under arrest must be taken before a court or judge; the goal is to prohibit the unlawful arrest of a citizen without appropriate evidence. The law has its origins in England, starting in the 14th century and solidified by the Habeas Corpus Act of 1679, which cemented habeas corpus procedure as being issued by superior courts commanding lower courts to bring the prisoner before a court of law before conviction. The United States of America adopted habeas corpus from its status as a British colony, placing it in Article One of the US Constitution: "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." (US Constitution, Article 1 Section 9). The protection of habeas corpus is vital when related to civil liberties; while it is not the most important civil liberty to be protected, its violation could be used to mask other civil liberties violations.
The War on Terror has not been the first time that habeas corpus has been suspended for the sake of the public good; in several other occasions, the government has chosen to strip away a citizen’s right to a trial in court. The first significant instance of this was the Civil War; in 1861, President Abraham Lincoln suspended habeas corpus in Maryland over the threat to destroy railroad tracks and disrupt Union supply lines, permitting arrest without trial to protect that railroad line (Ward, 1990). This soon extended throughout the Union, however, with the passing of the Habeas Corpus Suspension Act in 1863, permitting the government to suspend the right of habeas corpus for prisoners of war or other military personnel (Ross, 2003). Following the Civil War, the Civil Rights Act of 1871 also suspended habeas corpus in the event of sufficiently violent conspiracies against the government’s authority were found (Ross, 2003). Various other suspensions happened during World War II, particularly in Hawaii following the attack on Pearl Harbor; these examples and more show a history of suspending civil liberties in the name of national security.
Given the context of these previous instances, it is easy to see how they apply to the status of ‘enemy combatants’ in the War on Terror. Because of the threat of splinter cells, enemy agents living as American citizens, the protection of the American people has led to the institution of many different policies, such as the PATRIOT Act, which restrict civil liberties in the name of national security by authorizing unprecedented levels of surveillance on its citizens (Anderson, 2006). Furthermore, given the organized and terror-based nature of the 9/11 attacks, it was decided that a unique facility had to be created, isolated from the rest of the world, that would detain people of interest and enemy combatants. That place became the facility at Guantanamo Bay, where the United States maintains territorial control and has complete jurisdiction, despite the territory not being part of the United States. Habeas corpus rights have been restricted there as well, as Guantanamo contains many detainees and prisoners who have not been given a trial, and are ostensibly there indefinitely (Hawke, 2007).
This suspension of habeas corpus during the War on Terror comes as a result, primarily, of the Supreme Court case Boumediene v. Bush and its outcome. In this case, a Bosnian citizen sued for his habeas corpus rights after being admitted for detention in Guantanamo Bay. The Supreme Court decided 5-4 that the prisoners should be able to retain their habeas corpus rights. Their interpretation of the writ was as follows: anyone held in Guantanamo or other territories supervised and administrated entirely by the United States had the right to habeas corpus, regardless of citizenship or enemy combatant status. In the event that Congress were to suspend that right, something else must be able to allow the prisoner to show that he is being unlawfully held, as well as review evidence and correct mistakes (Oyez, 2008). While Justice Kennedy’s majority opinion was joined by Justices Souter, Stevens, Ginsburg and Breyer, Justice Scalia and Chief Justice Roberts dissented to the view, believing that the existing Detainee Treatment Act was sufficient to offer protections to enemy combatants (Oyez, 2008).
The suspension of civil liberties in the war on terror has become a hot-button issue in the past four years, with many perspectives being weighed in the public sphere as to its many justifications. One factor is the role of the President as Commander-in-Chief; the responsibilities of the executive branch in maintaining habeas corpus, as well as whatever independent powers he has at wartime, are “notoriously unclear” (Bradley, p. 139). Historically, presidents seem able to order military action that evades trials, or set up military tribunals, without needing authorization from Congress, but such decisions are highly public ones, and subject to scrutiny (Fisher, 2003). The Supreme Court has often ruled in favor of the President’s lawful actions, such as when Lincoln ordered the naval blockade of ports in the South (Bradley, p. 144).
However, there are others who believe that Congress should be the primary determiner of the occasions when habeas corpus is suspended. Throughout the constant push and pull of the Supreme Court rendering executive actions unconstitutional when it comes to the issue of enemy combatants (as in Boumediene v. Bush), many argue that the role of Congress must be to represent its constituents in this instance (Anderson, 2006). It is through the processes of legislation and policymaking that these blurred lines between national security and civil liberties violations can be made clearer; acts such as the Detainee Treatment Act of 2005 are meant to secure prisoners’ rights to trial, but many argue that Congress is caught up with so much gridlock and election-time posturing that the protections it is supposed to afford are not being provided (Anderson, 2006).
Given the executive and legislative branch having the ostensible authority to suspend habeas corpus, it is considered up to the Supreme Court to safeguard civil liberties from apparent overreaching on the part of the former branches. This judicial philosophy must involve a literal reading of the US Constitution, permitting the universal application of habeas corpus to its individuals as a basic human right of a citizen living under this government (Cole, 2003). When dealing with the rights of the individual during times of crisis, such as the War on Terror, the Supreme Court has a difficult job ahead: judicial review must deal both with the demands of the country at the time of its ruling and its far-reaching implications. To that end, they can be imperfect, having to weigh the will of the majority against the needs of the individual (Cole, 2003). In the case of emergencies and the writ of habeas corpus, however, there are some lines that must be drawn – the right to a court of law being one of them – and the Supreme Court’s job is to keep the government functioning without allowing unconstitutional actions to be made. When looking at this event on a personal level, I must say that I find myself objecting strongly to the suspension of habeas corpus, even when it comes to enemy combatants and national security. The existence of Guantanamo Bay sends the wrong signal to the rest of the globe, fostering continued hatred and distrust from other countries and bringing about more terrorism. Leaders and citizens alike believe that the indefinite detention of hundreds of combatants without charge on United States soil causes quite a problem with our foreign policy. Many people already link the detaining of American citizens of Middle Eastern ancestry in Guantanamo with the Japanese internment camps of World War II; 9/11 then becomes our Pearl Harbor, an atrocity that shook the country and allowed us to hold people without their permission, with no real intent of discovering whether or not they are guilty of anything, in order to track down leads on the people responsible.
The future of Guantanamo Bay is still up in the air, but its part as a representation of the often-sketchy nature of the War on Terror cannot be denied. Although the United States government has a strong history with the suspension of the writ of habeas corpus, it is always a slippery slope to handle as it permits the government unchecked powers over its citizens, which it could abuse any time it saw fit. The passing of the National Defense Authorization Act in 2011 created a dangerous legal setup for contravening the Constitution and allowing indefinite detention of prisoners without trial, leading to some very interesting discussions in the future about what that might hold for American citizenship. As we continue to deal with the consequences of the War on Terror, it will be interesting to see the effects it will have on our civil liberties, as well as the ways in which the various branches of government function to regulate the rights of its citizens.
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