In this paper we will dare to discuss the historical evolution of habeas corpus and its American and English traditions. Also allow me to provide examples in history where the privilege of habeas corpus has been suspended, due to national threats. We will analyze the relevance of habeas corpus to the contemporary U.S. situation during the war on terror, while explaining the U.S. Supreme Court's interpretation of the right of habeas corpus with respect to enemy combatants or illegal combatants. The Habeas Corpus’ history is ancient. Predominately of Anglo-Saxon common law origin, it precedes the Magna Carta of 1215. The practice surrounding the writ has evolved, Habeas Corpus from its earliest forms have been compelled to grant an appearance of a person in custody to be brought before the court. Habeas Corpus was originally the ‘prerogative writ’ of the King and his courts, over time it has evolved into a prerogative writ initiated by the person jailed, or someone acting on his behalf rather than by the King and his courts.
The intention of the habeas corpus arises from the suggestion that a government must either charge a prisoner or let him go. When compared to other civil liberties, it is clear that the writ of habeas corpus is as liberating as freedom of speech. We are offered the privilege to not only speak our truth but to also stand in court to prove some innocence. With entitlement to habeas corpus we are exercising our right to legal representation as well. “The right of habeas corpus was important to the Framers of the Constitution because they knew from personal experience what it was like to be labeled enemy combatants, imprisoned indefinitely and not given the opportunity to appear before a neutral judge. Believing that such arbitrary imprisonment is ‘in all ages, the favorite and most formidable instrument of tyranny,’ the Founders were all the more determined to protect Americans from such government abuses”. (Rutherford Institute, 2013) Habeas Corpus has only been suspended twice in the two centuries since the Constitution was ratified. The first being on April 27, 1861, in Maryland and parts of the Midwestern states. It was suspended in response to riots and local militia action, along with the threat that Maryland would secede from the Union. The second occurrence of suspension happened during Reconstruction, in the early 1870’s when President Ulysses Grant responded to civil rights violations made by the Ku Klux Klan, being limited to nine counties in South Carolina. “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.” (Article I, Section IX of the U.S. Constitution) There have been instances in this day and age where the safety of the public has been compromised.
For example, following the Oklahoma City bombing, Congress passed the Antiterrorism and Effective Death Penalty Act, it limited the federal writ of habeas corpus in two ways. First off it imposed a one year statute of limitations on bringing the writ, meaning those jailed were unable to apply for release after being jailed for over a year. Secondly, the federal judiciary’s deference to decisions increased dramatically when previously they were made in state court proceedings either on appeal or in a state court habeas corpus action. Meaning federal judges were forbidden from examining a case based purely on its merits instead forced to follow precedent decisions. Concluding 9/11, President Bush on several occasions attempted with limited success to revoke the right of habeas corpus. He also pursued more aggressively, to grant himself the power to revoke the basic right of habeas corpus for every American citizen. The Presidential Military Order of November 13, 2001 gave the president the power to detain non-citizens suspected of having a connection to terrorist of terrorism as enemy combatants.
These illegal combatants could be held without charge indefinitely without a court hearing and without access to a lawyer. It is important to remember it is the duty of the president to ensure the safety of the people. However, it is also the foundation of the United States that every man be given fair share to be brought to justice. It is understandable why the president would want to detain these enemy combatants but to do so is seen as contradictory to the U.S. Constitution. It is not only non-citizens who are jailed in such a way, Americans too have been captured and detained on American soil. “Many legal and constitutional scholars have contended that these provisions are in direct opposition to the Constitution and the Bill of Rights, particularly with regard to American citizens”. (Source) The U.S Supreme Court declared that American citizens have the right to habeas corpus even when declared to be enemy combatants. Citizens are afforded the right to habeas corpus and that right cannot be revoked. Rasul v. Bush affirmed that preventing the detainees’ access to the protections of habeas corpus was deemed unconstitutional. “In Boumediene v. Bush, the Court held that the Center’s clients detained at Guantanamo have a constitutional right to file petitions for habeas corpus on U.S. federal court challenging the lawfulness of their detention”. (Source) The separation of power principles guided the Court’s reasoning in its decision. The protection of this liberty is the duty and authority of the judiciary.
The courts found no historical habeas case offered by both sides were appropriate to the uniqueness of the Administration’s practices at Guantanamo, and instead looked to the fundamental principles underlying the purpose of habeas corpus, which is to allow the courts to act as a check against the abuse of Executive power. The courts believe the detainees in these cases are entitled to a prompt habeas corpus hearing due to the lengthy imprisonment they suffered without trial. The dissenting opinions offered by Chief Justice Roberts and Justice Scalia capture the perspective of the conservative wing of the Court that believe the prisoners at Guantanamo are not entitled to the writ of habeas corpus. Justice Robert asserts that the courts should not be reviewing the case because Congress has designed a system that protects the rights that these detainees might have. Justice Scalia asserts that “aliens abroad” are not entitled to the protection of the writ of habeas corpus and furthermore, they never have been. Going further, Justice Scalia goes on to believe that the Suspension Clause has no relevance for the prisoners at Guantanamo and therefore, the majority’s intervention cannot be justified. It is Scalia’s opinion that the majority decision will lead to disastrous consequences, including, “the majority will almost certainly cause more Americans to be killed. They instead feel the rights the detainees are entitled to be fully satisfied by the review mechanism established by Congress in the DTA (Detainee Treatment Act). The DTA amended the federal statute to eliminate habeas corpus jurisdiction to any illegal combatant held in U.S. custody. The substitution for habeas review created much more limited review proceeding in the Court of Appeals for individuals to challenge only the military’s classification of them as “enemy combatants”. It is argued that the DTA process fell short of habeas and could not mend the overwhelming amounts of due process violations that occurred during the Combatant Status Review Tribunals. In an historical decision, the courts rejected the political branches’ attempts to leave out the federal courts in this process.
Justice Kennedy wrote for the majority, and strongly criticized the President and Congress’s attempt to declare that because Guantanamo was not sovereign territory of the United States, the Constitution somehow did not apply. The Courts argued that if they allowed the political branches to switch the Constitution on or off, would lead to a regime, they, and not the courts, say what the law is. The Courts concluded that the detainees at Guantanamo have a right under the Suspension Clause to challenge their detention, and that the DTA review was not an adequate substitute for a habeas petition. A habeas proceeding must afford the petitioner an effective and meaningful ability to correct any errors in the decision under review, (in this case the determination that the petitioner is an enemy combatant), an opportunity to challenge the sufficiency of the government’s evidence and the opportunity to present and have a court review evidence not considered by the tribunal. The court opposed the DTA statute that deprived the detainees of their constitutional right to habeas because it fails to provide release from custody, and offers no procedures for detainees to provide new evidence. Justice Kennedy, the majority opinion author, has a reputation for pragmatism, the decision allows the courts to do what they do best: decided whether the government has the right to hold someone in detention by sorting out claims of factual innocence and weighing the evidence. Major General Jay Hood, former commander at Guantanamo, admitted that “sometimes we just didn’t get the right folks”, but innocent detainees remain at the base because nobody wants to be the one to sign the release papers, claiming there is no muscle in the system”. Ironically, the federal courts have been that muscle, and the decision ensures that they will be. It is my belief that the Founders of the Constitution wanted to prevent the monopoly created by the government. If Congress can pick and choose who to detain and how our laws pertain to them, the courts are more than likely being held outside the big picture. “The laws and Constitution are designed to survive, and remain in force, in extraordinary times”, Justice Kennedy wrote in Boumediene v. Bush and “the framers decided that habeas corpus, a right of first importance”, must be part of the American legal framework. Justice Kennedy noted that the habeas review is less about prisoner’s rights than the judicial power to check undue use of executive power. It makes sense. You have to figure, the detainees are detained for a reason connected with some illegality against the nation.
The courts feel it is their position to provide the civil liberty of habeas corpus and to hear the case, defining if there is just cause for detention. “This case is about federalism”, Justice Sandra Day O’Connor declared. She believes that state judicial procedures are inadequate to guarantee constitutional rights without active supervision by the Federal courts. Article II Section 2 of the U.S. Constitution, the Commander in chief clause, states that “the President shall be Commander in Chief of the Army and Navy of the United States, and of the Milita of the several states, when called into the actual Service of the United States”. Concluding the terrorist attacks of 9/11, U.S. Supreme Court explained in Youngstown Sheet & Tube Co. v. Sawyer, Presidential Commander in Chief powers increase when Congressional intent supports the actions taken by the Commander in Chief. In plain words, the President’s power can increase if the Congress in agreeing with the measures being taken. Hence, the passing of AUMF, (Authorization for Use of Military Force against Terrorist). The President can act in a way to preserve the safety of the country. Personally, I believe it is the President’s duty to lead and protect the citizens of the United States by any means necessary. I also believe in the checks and balances system designed by the Founders to keep all branches in check with one another. In the times of national tragedy, we can sometimes become emotionally charged and forget the foundations that our nation was built upon. In my opinion, that foundation starts with equality for all, even non-citizens who are ‘enemy or illegal combatants.