Introduction
An order of Habeas Corpus also known as the Great Writ is a Latin term which basically means produce the body. The writ is usually given by a court requiring a jailer to produce a prisoner before a judge within a certain period, failure of which exposes the jailer to legal sanctions for contempt of court. It has been touted for long as the bedrock of personal liberty in both the American and British legal systems. The objective of the writ is not to determine the innocence or otherwise of the detainee but rather to evaluate the lawfulness of such detention and whether it satisfies the standards laid down by the law. In this day and age where the United States and indeed, other nations are faced by terrorism, debate has considerably raged as to the relevance and the place of the orders of habeas corpus. This debate rages against the backdrop that terror is an unconventional war whereby enemies, usually invisible, employ terror as a tactic. As a result, there has been an argument in courts, academic circles, in the political world as well as in popular media as to how to balance between individual rights and collective security for the public. On one hand, civil libertarians have been pushing for human rights with security advisers keen on thwarting terror attacks who denounce the right of habeas corpus for terror detainees on the other hand. It is instructive to note that in the fight against terror, the United States government has taken captive of terror suspects, interrogated them (terrorists) using unorthodox methods and attempted to charge them without the option of judicial review or petitioning for an order of habeas corpus. It is not the first instance that the United States government has attempted to scuttle and curtail the right to petition for the writ as will be evident in the later stages of this discourse. In order to contextualize the right to habeas corpus especially in the war against terror, it is essential to examine the historical evolution of this writ in both the American as well as the British legal traditions.
Historical evolution
The origin of the writ of habeas corpus can be traced back to the 13th century in England with the first instance of the term appearing in the year 1305 according to the 18th century jurist, William Blackstone. However, the concept of habeas corpus is believed to have been part of the English Common law tradition at the time of Magna Carta. King John affixed his seal or signature on the Magna Carta on June 15, 1215 at Runnymede which effectively put a curb on the sovereign power. Article 39 of the Magna Carta stated that no freeman would be taken, imprisoned, outlawed, exiled or in any way harmed except by the lawful judgment of the law or his peers. The Founding Fathers further drew upon the Habeas Corpus Act of 1679 which was passed by Parliament and had the effect of curtailing the powers of the King. Nonetheless, upon crossing to America, the writ of habeas corpus underwent a significant change where it stood as a key protection of individual rights against the arm of the governing authority. In contrast, in England, the writ was mainly employed as a weapon against the English monarch.
Interestingly, only the writ of habeas corpus finds its inscription in the United States Constitution. Article 1, section 9 of the United States Constitution provides that the Privilege of the writ of habeas corpus shall not be suspended save in instances of rebellion or where the invasion of public safety may so require. As already set out, the order of habeas corpus basically requires that a jailer produces the detainee in a court of law to enable the review of the detainment. The United States Constitution presupposes this right, though it is now under scrutiny more so in times of the war on terror. As outlined in the United States Constitution, the law permits the suspension of the right to habeas corpus in certain instances. Indeed, the United States government has suspended this right for a few times in history. This usually happens mostly in times of crisis and this suspension as provided for in the Constitution has been invoked four times in the history of the United States. According to Story professor of law, Daniel Meltzer, one of the first suspensions occurred in the Civil war during the time of Abraham Lincoln, another during the Reconstruction, again in the Philippines after the Spanish-American war and the other in Hawaii following the Pearl Harbor attack after the Second World War. In effect, the suspension of the right to habeas corpus during the civil war by Abraham Lincoln stands out as one of the interesting times in the whole history for the mere reason that he purported to claim the authority that apparently was given to Congress.
At the time of civil war in the year 1861, Virginia had just seceded and the legislature of Maryland appeared to be following the same route by threatening to severe links with the North. Further, an angry mob had attacked reinforcements of the Union who had been sent in order to protect the capital city as they were passing through Baltimore. Consequently, President Lincoln gave the green light to one of his generals to suspend the right to habeas corpus in the military district. Another suspension of this writ took place in the year 1962 when Congress instituted the first American military draft sparking widespread rebellion.
Relevance of habeas corpus to contemporary US in the war against terror
The relevance and significance of the writ of habeas corpus to persons characterized as enemy combatants in the United States especially in the war on terror requires considerable examination. This position has been apparent in the landmark case of Boumediene v Bush which was decided by the Supreme Court in the year 2008. The case involved a foreign citizen seeking a writ of habeas corpus while he had been detained in an American military camp at Guantanamo Bay. Several cases that arose concerning the petitioning for orders of habeas corpus among persons declared as enemy combatants emerged following the declaration by President Bush that military commissions had the authority to try prisoners in the year 2001. In his assertion, Bush had declared the prisoners who had been captured in Afghanistan and Iraq as enemy or illegal combatants. Consequently, Bush set up the Camp X-Ray in Guantanamo and used this as a scheme to ensure that the prisoners did not petition for the writ of habeas corpus. He argued that since the camp was not on American soil, it then followed that the prisoners had no right under the American legal system or Constitution. Nonetheless, there were over 200 petitions for habeas corpus filed by representatives of the detainees. The first of the cases filed by these representatives of the detainees at Guantanamo Bay came for determination at the Supreme Court in the year 2004. In this case, Rasul v Bush, the court held that the American legal system was vested of the powers to determine whether foreign enemy combatants were detained illegally. In a reaction to the decision by the Supreme Court, the executive through the Department of Defense established a Combatants Status Review Tribunal which conducted private hearings to determine whether the detainees met the criteria to be regarded as enemy combatants. The tribunal hearings fell way below the standard set in the Rasul case as the detainees were not allowed to be represented by counsel. In a bid to tone down the criticism that was being leveled at the United States government over the detainees at the Guantanamo Bay, President Bush assented to the U.S Military Commissions Act (MCA) in the year 2006 whereby Congress made known its intention to authorize the conduct of trial by military commission for violations of war or other purposes. Further, the effect of the Act was to abolish the right to habeas corpus for non-citizens. It is this development that led to the interpretation of the right to habeas corpus in the Boumediene case by the Supreme Court.
Boumediene v Bush
The case of Boumediene v Bush, which was a consolidated petition involving another similar case sought to challenge the constitutionality of the Military Commission Act which had been passed by Congress and assented to by President Bush. In their arguments, the petitioners made reference to the Constitution which states that the right to habeas corpus shall only be suspended in cases of rebellion or invasion. With a majority of five to four, the Supreme Court struck down the MCA Act declaring it unconstitutional and further added that the federal court had jurisdiction over petitions from Guantanamo Bay for persons who had been tried under the MCA Act. The main issue in the case was whether aliens or enemy combatants detained in Guantanamo had the constitutional privilege of habeas corpus as provide for under the constitution. The majority found that the detainees had the privilege and declared the MCA Act that purported to suspend the right to this writ, unconstitutional. The court refuted the argument by government that the aliens neither were they under the jurisdiction of America nor were they citizens to be afforded protection under the constitution. However, the court was of the view that the key determination was not their physical location but rather under whose power they are so detained.
In the case, four justices including Chief Justice Roberts dissented with the majority in declaring the MCA Act unconstitutional and allowing for the right of habeas for aliens at Guantanamo bay. Chief Justice Roberts was of the view that the decision to strike down the MCA Act for its inadequacy as a substitute for habeas review was misguided as they did not state the rights that belonged to the detainees which could be vindicated by the Detention Treatment Act (DTA). He submitted that since the right to habeas is a fundamental right, such decision should have been left to a District Court which has the jurisdiction to hear claims of a prisoner and if necessary, release such a prisoner. He was of the view that the rule of law had not won following the ruling by the majority as alien enemy combatants had been given more space to shape policy. Justice Scalia dissenting, decried the seemingly leeway given to the judiciary, the least versed arm of government on matters of national security- to handle enemy prisoners in war. He submitted that constitutional right to habeas order does not extend to aliens abroad and that further this position was not in practice, inimical to the welfare of the enemy combatants. He further stated that the majority had put an onerous task on military commanders to prove to a civilian court that evidence supports the confinement of enemy combatants. This, he submitted, would be regretted by the nation.
Perspectives
A number of perspectives on this whole issue of the right to habeas corpus to prisoners especially in the war against terror and more so for enemy combatants outside the United States, have been advanced. G. Edward White, a law professor at the University of Virginia Law School alongside historian Paul Halliday, while analyzing the British and American jurisprudence on the right to habeas stated that judges were less concerned with the physical location of enemy combatants. On the contrary, they argued, the Supreme Court was concerned with the jailer rather than the prisoner. In effect, the court was mindful of the authority of the sovereign under whose power the enemy combatant was held, rather than the territory in which he was detained. They examined the status in England where even alien enemies at war with the monarch were afforded habeas review so long as they were residents of or came into contact with the King’s dominion.
The role of the president as the Commander-in Chief is also crucial in the right to habeas. In this respect, consideration must be given to Abraham Lincoln who suspended the right to habeas. Without doubt and as already set out, Lincoln’s edict was outside the law conferred by Congress. However, he defended his move stating that he had acted out of necessity so as to avoid the overthrowing of government and expressed hope that his actions would be ratified by Congress. This brings to the fore the role of Congress in determining whether the right to habeas can be held in abeyance. As hoped by Lincoln, Congress later ratified his action of suspending the right to habeas. It is instructive that Congress gave authority to the president in the year 2001 to use all force and means necessary against person responsible for the 9/11 attacks. It is also crucial to note that prisoners are held during times of war as a practical matter and not as a result of their guilt or otherwise. A Shattuck professor of law, Jack Goldsmith offers his perspective with reference to the Second World War by stating that thousands of prisoners of war were held with no due process rights. He explains that a petition during that time was dismissed by a court with the court holding that the president was allowed to detain anybody during a time of war without charging such a person if he was working for the enemy.
Political leaders have done little to plug the widening gap between the different perspectives at play. Government action of according preferential treatment to enemy combatants has eroded public support. In particular, the U.S has denied Al Qaeda fighters protection on the footing that they do not wear uniforms and do not obey the laws of war. However, they have afforded such protection to the Taliban, of which the United States is engaged in war with. This, as posited by popular media journalist, Anthony Lewis, is nonsensical. My personal philosophy is that the Supreme Court should act in a manner that strikes a balance between civil liberties and national security. In this era of terror, it would do well for the Supreme Court to follow the philosophy of the minority dissenting in their opinion so as to guard national security. If anything, national security precedes individual liberties.
References
Elmore, C. D. (2009). Enemy within our Midst: Distinguishing Combatants form Civilians inthe War against Terrorism. Kansas Law Review, 11-19.
Ford, F. (2010). Examining Potential Implications of the Boumediene v Bush. Digital Commons, 4-13.
Franklin, D. R. (2008). Enemy Combatants and the Jurisdictional Fact Doctrine. Cardozo Law Review, 14-19.
Gaffney, M. (2009). Boumediene v Bush: Legal Realism and the War on Terror. Harvard Law Review, 6-15.
Ghosh, S. (2012). Boumediene Applied Badly. Stanford Law Review, 14-18.
Osborne, R. J. (2007). The Writ of Habeas Corpus, The Constitution and Abraham Lincoln, War President. Yale- New Haven Teachers Institute, 11-18.
Posner, S. C. (2010). Military Commissions Act since Boumediene v Bush. The Colorado Lawyer, 12-18.
