As U.S. military deaths reach 8,000 and an additional 17,000 U.S. servicemen and women have been wounded while fighting the war on terror, the brutality of this conflict has, unfortunately, ranked this war amongst the most vicious wars fought by U.S. troops in recent history (“U.S. and Coalition,” 2012). Not unlike other conventional wars, the collection of enemy combatants and the subsequent gathering of intelligence acquired through detention and interrogation plays a key role in ensuring the safety of our troops on the battlefield and in the case of the war on terror, the average American citizen living their daily life.
Since the early days of the war on terror the President’s actions surrounding the detainment process of U.S. citizens and foreign nationals has been called into question pursuant to the guidelines of habeas corpus. The intent of this paper is to evaluate the privilege of habeas corpus and to establish links between its historical purpose, its relationship to our civil liberties and its relevance in contemporary U.S. conflicts and related matters. More specifically, the paper shall focus on the impact the war on terror has had on the interpretation of habeas corpus and the judicial stance adopted by the Supreme Court regarding a new breed of enemy known as ‘enemy or illegal combatants.’
The Writ of Habeas Corpus is commonly known as the ‘Great Writ,’ as it is directly connected to the civil liberties granted to all U.S. citizens. Under the U.S. Constitution, habeas corpus requires the detaining body to provide charged individuals with a specific crime and additionally provide valid documentation thereby establishing a legal right for detainment. If such proof cannot be produced or if the court finds that the detainer acted outside of its authority, the detainee may be released pursuant to an order of the court (Ekeland, 2005). The ability for the courts to monitor and overrule the executive and legislative branches in this regard provides the foundational support required to ensure citizens’ civil liberties are not circumvented or violated.
The evolution of habeas corpus dates back beyond the U.S. Constitution. Initially, habeas corpus was an act of common law modeled after the English Monarchies and English judicial system. English use of habeas corpus dates back to the 1200s and often used its parchment as a method for requesting a jailer to bring forth a prisoner. The act was commonly used by the King’s high courts to monitor the actions of the lower courts and the jailer, rather than provide a right or civil liberty to the individual being jailed (Halliday, 2011). In fact, habeas corpus was initially used to bring forth individuals guilty of laughing in church or fathering a bastard child and to hear cases regarding forcible entry into the King’s Navy (Halliday, 2011). Many historians believe the historical framers included habeas corpus within the U.S. Constitution because of specific events surrounding Shay’s Rebellion and an ongoing threat to domestic security from Native Americans (Ekeland, 2005).
Since its establishment within Article 1, Section 9 of the U.S. Constitution in 1787, Congress has only enacted its privilege to suspend the rights of habeas corpus a total of four times. The first and arguably the most famous time was Congress’ approval, after the fact, of President Lincoln’s directive to suspend habeas corpus rights during the Civil War (Terry, 2008). The second such suspension of habeas corpus occurred shortly after the Civil War, under the direction of President Grant, to help bring down a rebellion that had been raging within four South Carolina counties. The third and fourth congressional approvals to suspend habeas corpus took place in 1902 and 1941, respectively, and were reactions to invasion or rebellion efforts. In 1902, President McKinley received congressional approval to suspend habeas corpus during the insurrection of the Philippines; and, in 1941, after the attack on Pearl Harbor, President F. Roosevelt was given permission to suspend the writ of habeas corpus in Hawaii (Terry, 2008).
A singular commonality between all four instances wherein habeas corpus was suspended was that all acts of rebellion and invasion, and the subsequent detention of guilty individuals, took place within sovereign U.S. territories. Moving forward with a review of habeas corpus and its relationship to the war on terror, the issue of sovereignty shall become critically important to the discussion and application of habeas corpus in its contemporary form. Just after the attacks on the World Trade Centers in New York, the U.S. military under the direction of President Bush, began a strategic war on terror and all of those promoting such terroristic action across the globe. Part of Bush’s military strategy included the President’s approval of the creation of several offshore military detention centers specifically designed to detain individuals known as enemy combatants.
Detention centers in Guantanamo Bay (e.g., GITMO) and Bagram, Afghanistan, detain enemy combatants associated with the war on terror and are managed and protected by the U.S. military. Such prisons are used to detain individuals suspected of terrorist acts where such individuals are interrogated and further detained for the purpose of perpetuating public safety (Hafetz, 2011). A primary reason for constructing detention centers, or prisons, off of sovereign soil is to ensure the U.S. military maintains the ultimate right for determining how long enemy combatants are detained. Although the construction, management and protection of such detention centers was initially created to promote national security and well-being, the use of these prisons continue to be at the heart of great controversy as the issue of habeas corpus is debated.
In January of 2002, the first group of enemy combatants officially arrived at the GITMO detention center. Within a month of their arrival, the issue of habeas corpus was being argued within the U.S. judicial system. A group known as the Center of Constitutional Rights filed a case in federal court requesting that the detainees be provided with a habeas corpus hearing (“Factsheet: Boumediene,”). The case known as Rasul v. Bush sparked the Court’s first judicial review of habeas corpus and the War on Terror. Further, Rasul v. Bush also started a rather long volley between the U.S. judicial system and the executive and legislative branches. In this case, the Court ruled the detainees could legally challenge their detention.
However, in an effort to extend the subject detainees sentence of unlimited detention without habeas corpus rights, the Bush administration created the Combatant Status Review Tribunals to fulfill the requirement set forth by the Court. In June 2006, the Supreme Court once again ruled in Hamdan v. Rumsfeld claiming the administration was in violation of both U.S. and international laws thereby claiming detainees should have been given the rights of those covered by the Geneva Convention. In another attempt to further delay the release of detainees from GITMO, the Bush administration, along with Congress, passed the Military Commission Act which effectively stripped the judicial system of the right to hear habeas corpus cases involving individuals labeled as ‘enemy combatants’ (“Factsheet: Boumediene,”). Subsequent to such presidential and congressional actions, location and citizenship were no longer considerations for habeas corpus.
In February of 2007, several years after the first case was brought into federal court, a panel of 3 judges from the D.C. District of Federal Court, ruled 2-1 that the detainees had no constitutional rights to habeas corpus. With this ruling, all pending cases of habeas corpus on behalf of the detainees in GITMO were to be dismissed. Therefore, subsequent to such a ruling by the Federal Court in D.C., the U.S. Supreme Court announced that it would no longer hear cases regarding habeas corpus relative to the GITMO detainees (“Factsheet: Boumediene,”). With that announcement, many Americans thought that the Bush administration had won the war. However, in a unique reversal, the U.S. Supreme Court decided to, once again, hear cases regarding habeas corpus; and, on December 5th 2007, the Supreme Court heard arguments in the case of Boumediene v. Bush. After six months of judicial review, on June 12, 2008, the U.S. Supreme Court ruled in favor of the detainees in a 5 to 4 decision and once again upheld the habeas corpus rights of the detainees in Guantanamo Bay.
Writing on behalf of the court and for the 4 other justices that were in favor of the ruling, Justice Anthony Kennedy wrote that although the Court found no direct historical evidence to support habeas corpus rights of the detainees, the Court felt that the framers of the U.S. Constitution were motivated by their distrust of powerful government and that the Separation Clause was designed to maintain the delicate balance of governance while ensuring the liberties that this great nation was built upon (Greenhouse, 2008). Furthermore, since the suspension of habeas corpus was not officially enacted, the Court supported the idea that the detainees were entitled to the rights provided within the U.S. Constitution. The dissenting justices’ led by Chief Justice Roberts wrote their opinion based upon the fact that habeas corpus would not have been provided to a group of these individuals in 1787, and that in their opinion the Court’s ruling proved to be improper and the Supreme Court should not involve itself in military matters of non-citizens outside of U.S. sovereign territories (Kent, 2008).
As I became more familiar with the actions of the executive, legislative and judicial branches relative to the War on Terror and enemy combatant rights related to habeas corpus, I found myself supporting the actions of the President and of our Legislative leaders. I feel strongly that President Bush, and subsequently President Obama, have made the right decisions to promote the safety of our nation. It is a well-known fact that terrorist cells are quite patient and will continue to slowly and effectively recruit members to execute terrorist plans for harming innocent Americans. The War on Terror is filled with a new breed of enemy, an enemy that needs to be treated much differently than the enemies of WWI or WWII. If you think back to the Revolutionary War, the U.S. would never have won the war had we decided to fight the British in a ‘civilized’ manner. Instead of lining up on the battlefield, we changed our tactics and transformed our military into guerrilla fighters. It is actions such as these that have defined our country in the past and that will ultimately define Americans in the future.
Although the U.S. Constitution gives suspension powers to Congress and not to the Executive branch, I believe that the President has a right to immediately suspend habeas corpus in the interest of public safety. Furthermore, I believe that the ultimate right and timeline for the suspension of habeas corpus should be determined by Congress. Once the president has enacted the suspension and the immediate threat is controlled, Congress can then review the facts and justification of its use and overturn or uphold the Presidents’ direction. Finally, I believe that the Supreme Court’s role in the protection of American’s civil liberties is to utilize the constitution to ensure that the freedoms afforded to us as American citizens are not infringed upon by the other branches of government. However, they must keep in mind that the Constitution only provides the basic framework for such decisions and that they must do their best job to link its interpretations to today’s global environment.
The War on Terror is a war based upon polarized ideologies and fueled by the raw emotions that typically guide those who support radical philosophies. It is for that reason that I feel we, as Americans, need to reevaluate the traditional balance between civil liberties and national security. If we have learned anything from history it is that change is inevitable. Just as the battlefield and its combatants have changed, so, too, must the ways in which we protect ourselves. As I look back on my personal freedoms – prior 9/11 through today – I do not feel as though I have forfeited any of my basic human rights. If we choose a course of infighting and debate without action relative to minor changes to our freedom, we will undoubtedly fall right into the terrorist’s trap. It is their mission to create an environment that collapses the Western way of life. It is times like these that we must stand together, united as Americans, and work together as a singular body to redefine our country and our safety in an increasingly hostile global landscape.
The Writ of Habeas Corpus is a time-tested right providing the foundation of liberty and freedom within America. As we look toward the future, it is becoming increasingly more important that we do not forget the past or repeat history. From President Lincoln to President Roosevelt, our national leaders have used habeas corpus to protect the American way of life, liberty and happiness from those who wish to destroy it. As we continue to lead the charge on the War on Terror, and face an enemy that will go to any length to promote the downfall of America, we must remain steadfast in our support of today’s leaders and remind ourselves that we the people have given them to power to make decisions such as the suspension of habeas corpus.
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http://ccrjustice.org/learn-more/faqs/factsheet-boumediene Greenhouse, L. (2008, June 13). Justices, 5-4, back detainee appeals for Guantanamo. The New York Times. Retrieved from http://www.nytimes.com/2008/06/13/washington/13scotus.html Hafetz, J. (2011, April 14). Habeas corpus and the “war of terror”. Retrieved from http://www/acslaw.org/acsblog/habeas-corpus-and-the-war-on-terror Halliday, P. (2011, March 17). [Audio Tape Recording]. Habeas Corpus: From England to Empire, Charlottesville, VA., Retrieved from http://www.c-spanvideo.org/program/298560-5 Kent, A. (2008). Supreme Court holds that noncitizens detained at Guantanamo have a constitutional right to habeas corpus. ASIL Insights, 12(13), doi: 080620 Terry, J.P. (2008). Habeas Corpus and the Detention of Enemy Combatants in the War on Terror. JFQ: Joint Force Quarterly, (48), 14-18 U.S. and Coalition casualties. (2012, November 25). Retrieved from http://www.cnn.com/SPECIALS/war.casualties/table.afghanistan.html