Individual liberties in the United States (U.S.) would be at a loss without the writ of habeas corpus as provided in the U.S. Constitution. Any American citizen who has experienced trouble with the law recognizes it and is granted this right to appear before a judge first and foremost above anything else. However, even non-citizens of the U.S. detained in the war on terror have been granted the right of habeas corpus as determined by the U.S. Supreme Court. As a result, some of the detainees released have gone on to plan more violence against the U.S. Therefore, the writ of habeas corpus should be scrutinized even more than usual and rejected for those cases abroad that threaten the public safety of the citizens of the U.S. or its allies.
The history of habeas corpus, which means ‘you have the body’ in Latin, began with a rollercoaster of transformations within the English court system. It was first established in England around 1066 A.D. as a reason to summon a person to appear before a judge. This was more of a right for royalty and the courts, than it was for the arrestee. Three hundred years later it became known as the writ of habeas corpus and it started to be used at the request of prisoners (Farrell, 2010, 76). The procedures of arrest and detention were being reviewed mostly by the central courts. Soon Parliament began curbing the abuse of the writ, however, the central and lower courts were still using it to challenge each other.
Habeas corpus continued to evolve into the 17th century when the monarchy’s power was removed. Before long the Habeas Corpus Act of 1679 was passed, which prohibited the movement of prisoners to other countries, set time limits for petitions and established the right to a speedy trial. “Habeas corpus continued to develop in English law and was eventually exported to British colonies and beyond,” (Farrell, 2010, p. 80).
In 1789, the right to habeas corpus was incorporated into Article I of the U.S. Constitution guaranteeing 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” (Chemerinsky, 1987, 48). In the U.S., the writ of habeas corpus provides people with protection against wrongful imprisonment and is possibly the most important protection of individual rights in the Constitution (Chemerinsky, 1987, 48). Habeas corpus began as a right to appear before a judge to be shown lawful authority for the detention in a federal court, but it eventually spread to the state courts as well. “As a safeguard against unlawful executive detention, habeas corpus enjoyed an honored reputation among the Founding generation. Indeed, the writ is almost the only remedy mentioned in the Constitution,” (Fallon & Meltzer, 2007, 2037). However, the protection of the individual was not always the focus of the writ, but rather on the government officer’s justification to detain the person (Farrell, 2010, 92).
The writ of habeas corpus also influenced other aspects of the Constitution and its Bill of Rights. This includes protections from unnecessary search & seizure, imprisonment, and punishments without lawful cause or due process of the law (Ebeling, 2002).
Like the current war on terror, which began after the tragedy of 9/11, there have been a few instances over the last two centuries where the writ of habeas corpus has been suspended for emergency reasons. The most famous example is that of Abraham Lincoln during the American Civil War. Once the war began, Lincoln issued orders to the military suspending habeas corpus. The Chief Justice of the Supreme Court quickly ruled that “the power to suspend habeas corpus was vested with Congress and, therefore, the President lacked the authority to suspend,” (Farrell, 2010, 89).
The Supreme Court realized that Lincoln might not abide by the decision, which of course he didn’t. However, two years later Congress did pass a law giving the President the authority to suspend habeas corpus whenever he deemed that “’public safety may require it,’” (Farrell, 2010, 90).
The second most known suspension of habeas corpus took place after the Japanese bombed Pearl Harbor during WWII. In this instance, Hawaii was the only state affected by the suspension. Within the law that created the Hawaiian Islands as a territory, Congress stated:
safety requires it, suspend the privilege of the writ of habeas corpus, or
place the Territory or any part thereof, under martial law until communication
can be had with the President and his decision thereon made known (Farrell, 2010, 90).
The governor immediately suspended habeas corpus and placed the area under martial law when the bombs hit. President Franklin D. Roosevelt rapidly approved the action. Three years later, before the war ended, habeas corpus was still in effect. Before long, the suspension was held no longer valid by the United Supreme Court since a threat of invasion did not exist anymore. This case was heard on behalf of a man arrested for assault (Farrell, 2010, 91).
In the two instances above, both Lincoln and Roosevelt suspended habeas corpus in the U.S., after an attack on its own soil. After the tragedy of 9/11 on U.S. soil, the writ was also suspended, however, not necessarily on its own soil. It was suspended to allow for detention and conviction at the U.S. Naval Station in Guantanamo Bay, Cuba. The writ of habeas corpus is relevant today for the war on terror and will continue to be so as long as there are detainees held in Guantanamo Bay.
The U.S. Supreme Court confirmed that the U.S. courts have jurisdiction to hear legal challenges by those detained in Guantanamo Bay in correlation with the war on terror. The Pentagon soon established Combatant Status Review Tribunals for the very purpose of allowing detainees to contest their standing as enemy combatants (Elsea, 2010, 2). However, there were many inconsistent rulings held by the courts. The result was Congress passing both the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006, which decreased the federal courts power to hear habeas corpus cases and gave the President power to further reduce detainee’s access to the federal courts respectively.
In 2008, a breakthrough case was heard on the right to habeas corpus for war on terror detainees. In Boumediene v. Bush, the Supreme Court held that “aliens designated as enemy combatants and detained at Guantanamo Bay have the constitutional privilege of habeas
corpus,” (Elsea, 2010, 2). In this landmark 5-4 decision, the majority opinion (by Kennedy, Stevens, Souter, Ginsburg, and Breyer) discarded the Bush administration’s arguments for suspending habeas corpus and found that because the United States exercises full control over Guantanamo Bay, the Constitution’s habeas guarantee applies to those detained there (“Alliance,” n.d.).
On the other side, the dissent opinion written by Justice Scalia stated that George W. Bush put the prisoners in Guantanamo Bay because habeas corpus didn’t apply based on the precedent of Johnson v. Eisentrager. The President’s Office of Legal Council informed him that habeas corpus could not be properly exercised for an alien detained at Guantanamo. Justice Scalia and the other dissenting justices believe that in the long term, the decision won’t affect much in the way of security, but rather will only affect how those prisoners are treated. “In the short term, however, the decision is devastating. At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield,” (Boumediene v. Bush, 2008).
Although the Boumediene case was not an easy one for the justices to hear, the decision gravely put more Americans and their allies at risk. Admittedly, habeas corpus is a significant right that should not be taken for granted. However, foreign nationals detained because of either their involvement in the mass murder of 9/11 or their involvement in planning additional attacks, should not and cannot be freed based on a right granted to American citizens in the U.S. Constitution.
Again, the Constitution states 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,” (Chemerinsky, 1987, 48). If this doesn’t apply to 9/11, then what does it apply to? Although when Lincoln suspended habeas corpus he was dealing with a civil war and, eighty years later, Roosevelt was dealing with a foreign invasion on U.S. soil, war has changed. Criminals and terrorists have changed. They no longer have to appear as a local threat in order to do damage.
For the first time in history, as an internal invasion, domestic airliners were used as missiles instead of entering the country with foreign jets to do the dirty work. This invasion took place within the U.S. itself; something the founding fathers probably never anticipated. The act was an invasion. Now, although the terrorists fled the country and were eventually held at a military base abroad does not give them free access to constitutional rights.
Since the creation of the world-wide web, planning destruction from abroad is not a difficult task. In addition, as we well know, leaving the country after a terrorist attack is not difficult as well. The U.S. has spent the last 10 years tracking these violent people all over the world. Al-Qaeda murdered nearly 3,000 people on 9/11 and, continuously, additional plans for violence by this group are being tracked down and stopped at the last moment. These are vastly scary times.
Yet, Boumediene is single-handily responsible for many active terrorists being set-free. More than likely if something happens within our borders again, it will be at least one released prisoner from Guantanamo Bay that causes the act. As Justice Scalia said in his dissent, “their return to the kill illustrates the incredible difficulty of assessing who is and who is not an enemy combatant in a foreign theater of operations where the environment does not lend itself to rigorous evidence collection,” (Boumediene v. Bush, 2008).
That is the problem. There is trouble assessing which person is or is not an enemy combatant because, more than likely, the detainee is somehow connected to a terrorist cell but the cell is very careful at covering each member’s tracks. Nobody wants innocent people to be arrested and charged with a crime they didn’t perform. In spite of this, the danger is so extreme in the world today by countless terrorists who are hidden in the very walls of our society. The evidence is not always easy to see or find. At any rate, the arrests usually take place after locating the criminals within their own terrorist cell. Thankfully, the intelligence community has been doing a great job at setting-up and catching those individuals who do come inside the country, or even trace them abroad, to enact plans of violence.
It is agreed that the rights and civil liberties afforded to individuals in the U.S. are unique from any other country in the world. Congress was given the authority to decide on suspension of habeas corpus going back to the times of the Constitution and also confirmed during the American Civil War by the U.S. Supreme Court, as in Boumediene. It was here and with all other cases dealing with the writ, that the Supreme Court has had to step-in and remind everyone of Congresses authority, decide on who can qualify for habeas corpus, and also whether or not the suspension is valid or continues to be valid as in WWII. They were giving a vital role in this decision-making process and their philosophy is strictly connected to the Constitution.
The U.S. Constitution divides many foreign policy actions between the President and Congress. The President as Commander-in-Chief has power to act in times of conflict and in foreign policy situations, but Congress still needs to approve many of his actions. Although most presidents believe they have more authority over these types of actions then they actually have, there are cases where the line is so thin between right and wrong that the President can prevail. In regards to habeas corpus, Bush was following legal precedent for the detainees abroad. For this reason, he should have prevailed.
The U.S. was invaded on 9/11 in a way never experienced before in history. This invasion, in respect to the U.S. Constitution itself allows the suspension of the writ of habeas corpus. In addition, as a result of the horrible events that took place ten years ago, a danger to the public safety of American citizens not only took place at that time, but is a continuing danger on a large scale. There is only one way to prevent further harm from occurring and that is the suspension of habeas corpus for those detainees being held at Guantanamo Bay.
References
Alliance for Justice. Retrieved from http://www.afj.org/assets/resources/cases/boumediene-analysis.pdf
Chemerinsky, E. (1987). Thinking about Habeas Corpus. Case Western Reserve Law Review, 37, 748-793. Retrieved from http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1667&context=faculty_scholarship
Ebeling, R. M. (2002, April). Civil Liberty and the State: The Writ of Habeas Corpus. Retrieved from http://www.fff.org/freedom/fd0204c.asp
Elsea, J.K., & Garcia, M.J. (2010, February 3). Enemy Combatants Detainees: Habeas Court Challenges in Federal Court. (Congressional Research Service). Retrieved from http://www.fas.org/sgp/crs/natsec/RL33180.pdf
Fallon, R. H., & Meltzer, D.J. (2007, June). Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror. Harvard Law Review, 120, 8, 2029-2112. Retrieved from http://hlr.rubystudio.com/media/pdf/fallon_meltzer.pdf
Farrell, B. (2010, April 1). Habeas Corpus in Times of Emergency: A Historical and Comparative View. Pace International Law Review Online Companion, 1, 74-96. Retrieved from http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1011&context=pilronline
Boumediene v. Bush, Nos. 06-1195 and 06-1196 (2008). Retrieved from http://www.law.cornell.edu/supct/html/06-1195.ZD1.html
