Civil liberties can be defined as freedoms and civil rights which give individual specific rights. Examples of these rights include freedom from forced labor and slavery, right to fair trial, right of privacy, right of liberty and freedom from torture and death, only to mention but a few. Habeas Corpus on the other hand can be defined as a court order (writ) which commands an official of a government or an individual who had detained or imprisoned another to produce him or her at a designated time and place. This is to enable a court to determine the whether the action was legal or not and to give the prisoner freedom or not. War on terror, or as globally known, war on terrorism is a term mainly in application in the international military campaign aimed at eliminating Al-Qaeda and other militant terrorist organizations which commenced as a result of September 11th 2001 attacks which occurred in the United States. This war on terror is an international campaign and very many countries are in participation. For example, non-NATO and NATO nations, including the United Kingdom are in participation. This phrase was first used by the former United States President George W. Bush on September 20th 2011. This term has now between widely accepted by international media and the international community to refer to the global lawful, political, military and conceptual battle which targets terrorist regimes and organizations.
The concept of habeas corpus was coined first in the Magna Charta (a document which was supposedly constitutional and was forced by English landowners on King John on 15th of June 1215). The Magna Charta contained liberties which were enforced and required that no person was to be detained without the due process of law. This document declared that no free man was to be imprisoned or seized or even outlawed without lawful judgment. This writ was first used by common law courts in England in the thirteenth and fourteenth centuries. The common law courts consisted of legal professionals who competed with feudal courts. These feudal courts were controlled by the landowners or ‘lords’. Since the feudal courts lacked consistency, common law courts began issuing writs which were used to release persons who were held by the royal courts. A good example is the Star Chamber or simply, ‘The Chancery Admiralty’ (Freedman, 2003).
With reference to the United States constitution, habeas corpus is found in Article 1. The section is 9 and the clause is 2. It states, "Writ of Habeas Corpus has a certain privilege. It states that it shall not be suspended, unless in the Cases of Rebellion or Invasion the public Safety may require it” (Morse,1993). In 1861, it was suspended by President Abraham Lincoln in the process of his authorization to Civil War generals to arrest any person whom they thought to be dangerous. To add to that, in 1863, it was suspended by the congress to allow the army of the union to temporarily hold accused persons until their civil trials. The congress passed the Judiciary Act of 1789 in 1789. This Act granted the federal courts power and permission to hear petitions which were related to habeas corpus. The habeas corpus writ is a very special remedy since it gives power to the courts to release a prisoner who has undergone through criminal justice as a whole system of safeguards and appeals. The burden thereof usually lies with the petitioner to prove that he or she has been held illegally and in violation of their constitutional right. When the petitioner has met the burden of proof, a shift occurs to the warden to giver justification to the imprisonment.
The above examples of the suspension of the writ of habeas corpus have related application to the present. The suspensions, first by Abraham Lincoln in in 1861 and again by the Congress in 1863 due to the mentioned reasons can be used as basis of the same in the present war against terror. For a fact, the ruling by his majority opinion, Associate Justice Anthony Kennedy ruled that the government of the United States was wrong in its detention of hundreds of detainees in Guantanamo Bay. This happened recently in May 2013. The CCR Executive Vincent Warren said that by granting the habeas corpus writ, the court recognized the fact that the rule of law which was established hundreds of years before and which was essential to the jurisprudence of all Americans, cleared the illegal detainees of all wrongdoing. The judge rejected the argument by the government that Guantanamo laid outside the fifty American States, thus the writ of habeas corpus was inapplicable. One of the detainees who got justice reprieve was Majid Khan who is a former American resident. He reviled that in Guantanamo Bay, the government engaged in lawless detentions and abuses which went against civil rights of all Americans as is in the constitution (Jones,1994).
The case 553 U.S. 723 (2008) Boumediene v. Bush was a submission which was made in the court of the United States about habeas corpus. It was done on behalf of Lakhdar Boumediene, who was a naturalized citizen of Herzegovina and Bosnia. He was held by the government of the United States in the detention camp of Guantanamo Bay. The case challenged the detention of Boumediene and its legality aspect. In addition, it challenged the constitutionality of Military Commissions Act which came about in 2006. The combined cases had their oral arguments heard on the 5th of December 2007. On the 12th of June 2008, the court delivered its judgment. Justice Kennedy made a 5-4 majority ruling. He said that the prisoners had a right to the writ of habeas corpus which was envisaged in the constitution of the United States. He also said that under the constitution, the Military Commissions Act of 2006 was unconstitutional. As a result he suspended the Act. He held that, by de facto, the United States maintained sovereignty in Guantanamo Bay whilst Cuba retained control over the said territory. With respect to combatants, the court delivered that it was illegal to hold aliens in the territory disguising them as enemy combatants.
The ruling was made five justices. These justices were Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens. They rejected President Bush’s administration argument that laid the legal basis for its strategy which was adopted immediately after the September 2011 attacks. These judges said that the detention of Mr. Boumediene was illegal and wrong. They also ruled that the setting up of Guantanamo Bay itself as a camp was illegal. However the other four dissenting judges were Samuel A. Alito Jr., Clarence Thomas, Justice Scalia and John G. Roberts Jr. They had dissenting opinions and predicted “disastrous consequences” from the ruling. In fact, Justice Antonin Scalia said that the court’s decision was not made on principle, rather on an inflated notion of supremacy of the judiciary. Although the congress provided a procedure which was an alternative, it was not put into consideration. It was noted that though the Detainee Treatment Act provided access to federal court appeals to detainees, ‘enemy combatants’ were never given that opportunity. The minimum of the four dissenting opinions was by Chief Roberts who in milder tones expressed the charges as judicial activism. What the judge’s did was a landmark ruling that provided a way forward for the justice of the hundreds of detainees in Guantanamo Bay.
As discussed, in 1883, the congress suspended the writ of habeas corpus to enable the union army to carry out its duties during the riots. Therefore, the congress has powers to suspend and dismiss the writ. There is a suspension clause in the constitution of the United States which 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." However, the role of the Supreme Court in the protection of liberties goes along way. It is not only supposed to keep record of in the protection of individuals against violations of their rights, but it is also supposed to curb the excesses many opinions have been expressed towards this subject. Eric M. Freedman, an expert at the University of Hofstra, said that the court was on the correct side of history for its ruling. He called the habeas corpus ‘habeas lite’. He added that that the ruling was a structural reaffirmation of the meaning of the rule of law. Mr. Bush in retaliation said that he would ask the congress to provide a substantial opinion on the matter. The role of the president as the commander in chief is to decide whether it is war time or not and whether to bomb foreign cities or not. In addition, as commander in chief, the president has the power to inspect Navy Yard and to call troops to halt a riot. In this context of war on terror and habeas corpus, as the commander in chief, the president can call for the suspension of this writ as President Lincoln once did. He can also call for the lifting up of the suspension. President Bush used this power to set up Guantanamo Bay whereby he regarded the absence of American authority in the area as a good excuse. Though he never called for the suspension habeas corpus, he contributed a great deal to the setting of the camp. President Obama in his capacity, called for the closure of Guantanamo Bay. Though this is yet to happen, it is in the process. As the president, he also removed troops from Afghanistan, which is still on the war of terror. of the government. This court is also balanced with majority of human right violation cases. This court also supports economic and civil liberties, with Justice Sandra Day O’Connor and Justice Anthony Kennedy being the leaders. The Justices who are in charge of this are Justice Ruth Bader Ginsburg and Justice Stephen Breyer.
References
Freedman, E. M. (2003). Habeas corpus: Rethinking the great writ of liberty. New York: New York University Press.
Harrington, James C., and Anne More Burnham. 1995. "Texas's New Habeas Corpus Procedure for Death-Row Inmates: Kafkaesque—and Probably Unconstitutional." St. Mary's Law Journal 27 (fall).
Jones, Andrew A. 1994. "Federal Habeas Corpus Evidentiary Hearings: Has the Court Deliberately Bypassed Section 2254(D)?" Wisconsin Law Review(January-February).
LANDMARK WIN FOR GUANTANAMO DETAINEES! | Center for Constitutional Rights. (n.d.). Retrieved from http://ccrjustice.org/newsroom/press-releases/landmark-win-guantanamo-detainees!Retrieved from http://www.nytimes.com/2008/06/13/washington/13scotus.html?pagewanted=all&_r=1&
Morse, Charles R. 1993. "Habeas Corpus and 'Actual Innocence': Herrera v. Collins, 113 S. Ct. 853 (1993)." Harvard Journal of Law and Public Policy16 (autumn).
Seven Roles for One President | Scholastic.com. (n.d.). Retrieved from http://www.scholastic.com/teachers/article/seven-roles-one-president
