the War on Terror
the War on Terror
The writ of habeas corpus can be literally translated into “you should have the body.” The words “habeas corpus” were the original first words of a writ, or legal action, that was began in Anglo-Saxon common law. This writ was ordered by the king, and used when prisoners were to be moved from an outlining prison to the king’s court to testify (Robertson, 2002). It has evolved, however, into a means for prisoners to challenge their incarceration. Prior to the most recent legal developments in this area, the writ was primarily seen as a prisoner’s last chance to challenge their incarceration (Dixon, 1994). However, in the new light of the ongoing war on terror, the writ of habeas corpus in America has been re-established as an effective tool for political change, not only on pure legal fronts but in political and social areas as well (Wert, 2012, p.2). Viewed as a political tool, as opposed to a mere legal measure, the writ of habeas corpus continues to provide the means to move not only “the body” but also political, constitutional, and social issues related to the war on terror before the courts of the United States, although as discussed below, this process will move only as efficiently as the system will allow.
The function of the writ of habeas corpus in relation to the preservation of civil liberties in America cannot be fully understood without taking into account other parts of the Constitution. The first of these other parts of the Constitution is the due process clause. In particular, the writ of habeas corpus has been called, by the Supreme Court the “’vindication’ of due process” (Garrett, 2012, p. 49). Due process is found in the Fifth and Fourteenth Amendment of the Constitution, and provides that no person can be imprisoned or punished without full access to the process available under the law. Habeas corpus can be seen as a second means to ensure that due process has been met in the pretrial time period, but also allows a judge to look into the facts and law surrounding the validity of the detention (Garrett, 2012, p. 64). In this way, through its legal connection to the due process clause, the writ of habeas corpus gives the ability to pursue enforcement of a wide range of civil liberties.
A second section of the Constitution that plays a key role in the function of habeas corpus is the Suspension Clause, located at Article I, section 9. The Suspension Clause provides that the privilege of habeas corpus will not be suspended except for times of rebellion or invasion when required for public safety (Hafetz, 2007). This clause has been utilized only rarely and only temporarily before recent legal developments. Specifically, the writ was suspended twice during the Civil War, once during an armed rebellion in the Philippines in the early 1900s, and in 1941 immediately after Pearl Harbor during World War II. With each of these suspensions, there was a determination by Congress of the effect on public safety, and a time limit imposed upon the suspension (Hafetz, 2007).
An additional aspect important to the role of habeas corpus in the context of the war on terror is the use the term “enemy combatants” and the categorization of such combatants into lawful and illegal. In the context of the war on terror, an unlawful enemy combatant is defined as “some one authorities believe is connected with a terrorist group, whether through funding or direct orders or association, among other connectors” (Cirilli, 2013). This definition contrasts with a lawful enemy combatant who is “someone commanded by a person or persons responsible for subordinates, carries arms openly, and conducts operations in accordance with the laws and customs of war, among other criteria” (Cirilli, 2013). Lawful enemy combatants receive protection under the Geneva Conventions including prisoner of war status, while unlawful enemy combatants do not.
Both lawful and unlawful enemy combatants tie into the writ of habeas corpus because enemy combatants may have their habeas corpus rights suspended. The President has the authority to determine whether someone is an enemy combatant, but it should be noted that President Obama has not used this term since 2009 (Cirilli, 2013). Additionally, the Military Commissions Act of 2006 (MCA), an action of Congress, statutorily denies the right of alien unlawful enemy combatants to the rights under the Geneva Convention and also gives the President the right to set up a military tribunal to try such persons outside the United States judicial system. It denies the right to the writ of habeas corpus and authorizes penalty up to death (Cirilli, 2013). These positions and the effect of the Boumediene case on this law will be discussed more fully below as well as in the following discussion of four perspectives on the interaction between the writ of habeas corpus and the war on terror.
The Supreme Court case of Bormediene v. Bush is the latest judicial action at that level regarding the Guatanomo Bay detainees. This case involved a writ of habeas corpus for Lakhdar Boumediene and several others similarly situated who were being held in military detention there (553 U.S. 723, 2008). The Boumediene case is directly tied to the war on terrorism, as the detainees at issue were captured abroad during various armed conflicts in 2002. Based on classified evidence, all of them are aliens and had been classified as “enemy combatants” (Dasgupta, 2009, p. 428). A primary question in this case was the constitutionality of the recently passed MCA, which included a section that specifically removed jurisdiction, or power to hear a legal issue, from the federal judiciary for “’any action . . . relating to any aspect of the detention, transfer, treatment, trial or conditions of confinement’” of a detainee found to be an enemy combatant” (Dasgupta, 2009, p. 434).
The lower court for the case, the D.C. Circuit, had found that the MCA provided the basis to reject the power of the federal court to hear Boumediene’s habeas corpus writ. Thus, neither habeas corpus nor the protection of the Suspension Clause of the Constitution was available to the detainees. The Suspension Clause was not available because it did not apply to “aliens outside the sovereign’s territory” (Dasgupta, 2009, p. 435).
In the majority opinion, five Supreme Court justices reversed the lower court’s decision. Justice Kennedy authored the majority opinion. The opinion held that the MCA had unconstitutionally denied the right to habeas corpus to the detainees. This therefore restored the writ of habeas corpus to Boumediene and the others in the suit. Further, the opinion found that by categorically removing jurisdiction in the courts for matters related to the detainees, the MCA had improperly infringed on the judiciary’s right to comment on the law. They stated that being able to comment on the constitutionality of congressional or presidential actions within a law was squarely part of the power and duty of the courts and thus they were proper doing so in this case (Dasgupta, 2009, p. 435).
Chief Justice Scalia authorized the dissenting opinion in Boumedieine. The basis of the minority opinion was that habeas corpus has never applied to aliens abroad. If that is the case, then the Suspension Clause does not apply either (Dasgupta, 2009, p. 436). Scalia’s opinion also included the cryptic warning that the decision “will almost certainly cause more Americans to be killed.” (Abraham, 2008), therefore expressing a politically charged concern with the security of United States citizens with the majority having provided possible means of release.
One very interesting commentary on this case was provided by Lt. Col. Stephen Abraham, who had been assigned to the Office of Administrative Review of the Detention of Enemy Combatants. He states that Boumediene is a clear instruction from the Supreme Court to policy makers within the Executive Branch, such as the President, that their approach is improper, particularly due to the perfunctory way the review of detention was being carried out in practice. Thus, the decision in this case was necessary to reverse a tide of policy that did not meet the minimum constitutional rights that should be provided (Abraham, 2008).
This view is also shared by Dr. Riddhi Dasgupta, a professor of law at Cambridge. He states in his commentary on the Boumediene case that it is essentially one about civil liberties and that is the way future courts should interpret its holdings (2009). In particular, Dr. Dasgupta states that the case stands for the premises that the language of the Suspension Clause prevents unsupported suspension of habeas corpus, the right to an impartial court to review a detention is provided by that clause, and both U.S. and non-U.S. citizens have the right to habeas corpus (2009, pp. 425-26), all very fundamental civil liberty rights.
Two additional more recent commentaries, that of Judge Harry T. Edwards of the D.C. Circuit Court (Worthington, 2013) and that of law student Saurav Ghosh (2012) have pointed out the problems with the application of the guidelines provided by the majority in the Boumediene. In particular, although the habeas corpus writs have been heard by detainees in the D.C. Circuit court, inconsistent usage of the standards provided by Boumediene has resulted in successful appeals, blocking many actual releases. But after a particularly unconvincing case by the government that did not result in release on June 18, 2013, Judge Edwards finally had to speak out. He requested that Congress and the President come up with a different approach to finally address the remaining detainees in Guantanamo Bay. It is my personal opinion that Judge Edwards is correct, and the President and Congress should work together to find a more effective means of review for detainees, perhaps through a statutory standard rather than the judicial one that is not currently working. If such a law were passed, it would be ironic, as it was legislative and executive action through the MCA and prior policies that first created the detainee habeas corpus issue.
As pointed out by the various commentators discussed, the writ of habeas corpus has been used a vehicle for political change during the war on terror. Review of the use of the writ has brought about examination of the role of the President, the role of Congress, and the role of the Judiciary in respect to persons found in circumstances strongly suggesting their participation in terrorist or planned terrorist actions. Thus, the writ of habeas corpus in this context also forces examination of the role of the Constitution of the United States on these issues. Although it has now been six years since the last Supreme Court case on this topic, Boumedicine, it appears that controversies surrounding these actions have been sidestepped through avoidance measures on the part of the military and the judiciary, rather than any true resolution. This has lead to a call to the legislature and executive branch for a better solution.
References
Abraham, S. (2008). Getting back on track after Boumediene. Jurist. 29 June. Retrieved from
http://jurist.org/forum/2008/06/getting-back-on-track-after-boumediene.php
Boumediene v. Bush, 553 U.S. 723 (2008).
Cirilli, M. (2013). Ten facts about enemy combatants. Politico. 22 April. Retrieved from
http://www.politico.com/story/2013/04/what-is-an-enemy-combatant-90436.html
Dasgupta, R. (2009). Boumediene v. Bush and extraterritorial habeas corpus in wartime. Hastings Constitutional Law Quarterly. 36(3): 425-56.
Dixon, M. (1994). Court’s ‘last resort’ must remain intact against efficiency. Chicago Tribute. Retrieved from
http://articles.chicagotribune.com/1994-01-04/news/9401040108_1_habeas-corpus-leonel-herrera-roger-keith-coleman
Ghosh, Saurav. (2012). Boumediene applied badly: The extraterritorial constitution after Al Maqaleh v. Gates. Stanford Law Review. 64: 507-34.
Garrett, B. L. (2012). Habeas corpus and due process. Cornell Law Review. 98(1), 47-126.
Hafetz, J. (2007) Ten things you should know about habeas corpus. Brennan Center for Justice at the New York School of Law [White paper]. Retrieved from
http://www.brennancenter.org/sites/default/files/legacy/d/download_file_48810.pdf
Robertson, J.D. (2002). Habeas corpus the most extraordinary writ. Center for Preservation of Habeas Corpus. Retrieved from
http://www.habeascorpus.net/asp/
Wert, J. (2011). Habeas corpus in America: the politics of individual rights. Lawrence, KS: University Press of Kansas.
Worthington, A. (2013). Judge calls for an end to unjust provisions governing Guantanamo prisoners habeas corpus petitions. The Future of Freedom Foundation. 28 June. Retrieved from
http://fff.org/explore-freedom/article/judge-calls-for-an-end-to-unjust-provisions-governing-guantanamo-prisoners-habeas-corpus-petitions/
