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Civil Liberties, Habeas Corpus, and the War on Terror

Buy custom Civil Liberties, Habeas Corpus, and the War on Terror essay

Buy custom Civil Liberties, Habeas Corpus, and the War on Terror essay

Habeas corpus has always been a disputable point in the U.S. legislation. On the one hand, it is an effective remedy for government injustice which gives everyone an opportunity to defend themselves against the excessive severity of law. On the other hand, the meaning and scope of habeas corpus rights are rather ambiguous and controversial. Currently, when the national security of the states is often threatened by dangers from the outside, habeas corpus problem has become especially painful. This paper attempts to analyze the evolution of the issue of habeas corpus in course of the U.S. history and describe the perspectives on habeas corpus application in the contemporary situation of the war on terror.

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Habeas corpus (Latin for “you should have the body”) is a common-law order requiring that a detainee should be brought into court to question the legality of the detention. In England, the official Habeas Corpus Act was issued by Parliament in 1679, though it dates back to as far as Anglo-Saxon times (the first official record about habeas corpus was made in 1305). However, nowadays, it is rarely resorted to and does not have much practical significance (Farell, 2013). In 1985, habeas corpus in the U.K. was superseded by the Police and Criminal Evidence Act making some clarifications and laying more detailed rules on the pre-charge detention.

Habeas corpus is more efficient the U.S. than the U.K. It is resorted to when the state court’s determination contradicts the federal law. It can also be used to examine the sum of bail, extradition processes, and other issues. Habeas corpus is based on the Constitution (the Suspension Law) and is closely related to the protection of civil rights and liberties such as privacy, proper process of law, and equality before the law. The basic premise behind habeas corpus is that the authorities cannot detain a person without a just cause. Thus, habeas corpus is a means to disute unwarranted government’s intrusion into one's personal life and gives an opportunity to demand fair and equal treatment.

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Habeas corpus was suspended several times in the U.S. history. The first such endeavor belongs to President Lincoln. The reason for the suspension was his generals’ requirement to establish military courts in order to curb the “Copperheads” (Peace Democrats).  The second habeas corpus suspension was in 1871. President Grant took such a measure in response to the rise of Ku Klux Klan and severe violations of civil liberties. In the contemporary situation of the war on terror, similar events occur. Attempts to cancel habeas corpus are often made when serious civil law violations or acts of terrorism take place. For instance, after 9/11, President Bush tried to revoke habeas corpus. In November 2001, he issued the Presidential Military Order which gave the President the power to arrest non-citizens suspected in terrorism. In 2006, President Bush adopted a law that restricted habeas corpus right to enemy combatants. This law was severely criticized and judged an attack on the Constitution. Bush’s decision bears a strong similarity to that of Lincoln, who also was guided by the dangers of war and whose action was declared unconstitutional. However, while Lincoln made his decision personally, Bush’s restrictions of habeas corpus were supported by the Congress.

In the current situation of the war on terror, habeas corpus has become a controversial issue. In 2007, the Congress approved the Habeas Corpus Restoration Act returning the right of habeas corpus to enemy combatants. Some experts state that this is highly irrelevant since armed conflicts will become more dangerous for civilians as well as soldiers (Carafano, 2007). They believe that the Congress should not undermine the state’s ability to detain enemy combatants, because they are not entitled to POW status and do not have a full access too the U.S. courts. Granting them habeas corpus right is likely to damage the integrity of the laws of war. However, suspension of habeas corpus right of enemy combatants is extremely problematic, because the law does not precisely define who can be considered an enemy combatant.

In Boumediene v. Bush case, the majority of justices were of the opinion that habeas corpus right applies to people held in Guantanamo as illegal combatants (Garcia, 2008). The Court stated that in case the Congress insists on habeas corpus suspension, it should provide the detainees with an opportunity to prove that the detention was unauthorized. All alternative procedures substituted by the Congress were considered not sufficient or effective.  The majority’s opinion was to a great extent based on the initial purpose of habeas corpus, which is to protect detainees and prevent the authorities from abusing their executive power. However, other justices argued that there had been no illegal suspension of habeas corpus. They underlined that the Detainee Treatment Act guaranteed all chief protections which habeas corpus provided. They also pointed out that Guantanamo Bay did not fall under the U.S. laws because of its location; moreover, historically, habeas corpus extended exclusively on American citizens within American borders while “aliens abroad” were not allowed to resort to habeas corpus. President Bush himself was of the opinion that Guantanamo was not under the jurisdiction of American courts, and the detainees could not expect protection of habeas corpus.

As a Commander-in-Chief of the Army of the United States, the President ensures faithful execution of laws. He acts according to constitutional jurisdiction and has the power to displace civil law including habeas corpus. When martial law is declared, ordinary administration is superseded as far as the President’s military power extends. Habeas corpus cannot interfere with military measures.

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