Even though suspending habeas corpus during the period of War on Terror is acceptable and is the Presidents way of protecting and preserving the United States Constitution during the War on Terror were civil liberties violated, and should habeas corpus been suspended. Detaining individuals for a suspected crime and not giving them their day in court is in violation of the Constitution. Habeas corpus was implemented in the Constitution to ensure that individual would not be unlawfully imprisoned. Presidents have used their war time power to suspend the habeas corpus, is this violating civil rights and liberties?
Habeas corpus is derived from the Latin term “you have the body” which is the opening terms of a legal writ (Merriam-webster. com, 2013). Habeas corpus is a legal writ that a person or prisoner can use when they are being detained by the law illegally. A prisoner has the right to know the charges that he or she is being held for and they also have the right to a trial by a jury of his or her peers (Lobban & Halliday, 2011). Habeas corpus is the actual legal action that commands the law (police or military police) to have a court inquiry as to why the detainee is being detained (The Characters of Freedom, n.d. ).
If the person is being detained for insufficient or unjustifiable reasons the court can order the release of the prisoner. So basically putting it, Habeas corpus is identified as a legal safeguard that protects people’s individual rights and not being illegally imprisoned (A Constitutional History of Habeas Corpus, 1982). John Merryman a Pro-Confederate was arrested for treason, during the time that Lincoln had declared martial law, and through his attorney Merryman requested a writ of habeas corpus (Levin-Waldman, 2012).
He was granted his requested and the order was issued for Merryman to be released. Lincoln ignored the request and in 1863, Congress approved the suspension and proposes Supreme Court review of the legality of the suspension by Lincoln (American Civil Liberties Union, 2007). The Congress passed the Ku Klux Klan Act of 1871, giving permission to President Grant to suspend habeas corpus due to the rebellions that were raging in South Carolina. In 1941 habeas corpus was suspended in response to the Pearl Harbor attack (American Civil Liberties Union, 2007).
The Antiterrorism and Effective Death Penalty Act of 1996 was signed by President Clinton. The Antiterrorism and Effective Death Penalty Act limits the circumstances under which a federal court can issue a writ of habeas corpus (American Civil Liberties Union, 2007). In 2004 “after the being captured abroad during hostilities between the United States and the Taliban, two Australians and twelve Kuwaitis were among hundreds of detainees sent to Guantanamo Bay Cuba, where many of them remained.
In the first of several key rulings against President George W. Bush’s detainees’ policies, the Supreme Court holds in Rasul versus Bush that the statutory writ of habeas corpus extends to all detainees at Guantanamo” (American Civil Liberties Union, 2007). In 2005 President Bush signed a Detainee Treatment Act of 2005, this act provides that no court, no justice, no judge will have jurisdiction to hear or consider an application for a writ of habeas corpus filed on the behalf of an alien held by the Department of Defense at Guantanamo Bay.
In 2006 President Bush signed the Military Commissions Act of 2006 and it was passed by Congress, this act orders that no court, no justice, no judge will have jurisdiction to hear or deliberate an application for a writ of habeas corpus filed on the behalf of an alien held by the United States, who has been determined by the US to have been appropriately imprisoned as an enemy combatant or is awaiting that decision (American Civil Liberties Union, 2007). .
The writ of habeas corpus has been used in the United States whether it is in use or has been suspended it is a very important legal aspect of our United States Constitution. Habeas corpus is sometimes suspended during state emergency, war time, and War on Terror. Presidents Abraham Lincoln, Theodore Roosevelt and George Bush were the Presidents that suspended habeas Corpus, due to situations listed above. The Supreme Court decided in 2004 on the case of Rasul vs Bush that the very old statue about when the detainees of Guantanamo Bay were allowed and did apply to the prisoners of Guantanamo Bay (Fontana, 2008).
With the Rasul vs Bush case the court did not discuss the type of hearing ultimately permitted to those in Guantanamo Bay, the case was incomplete to the matter of whether a federal court could hear their habeas corpus petition (Chemerinsky, 2005). In 2008 the Supreme Court ruled the 5 to 4 majority stating that the prisoners had the right to habeas corpus and that the Military Commission Act of 2006 was unconstitutional to the prisoners’ rights (Boumediene V. Bush, 2009). Habeas corpus is a legal action that is supposed to protect a detainee from unlawful imprisonment.
So what happen during the War on Terror, why is it that the United States Justice system fell apart, and would not follow its own laws and regulations. The President and his administration acted as if they were criminals in control. Violating the civil liberties of Americans, accusing some of being enemy combatants, treating them as such, and not giving them their day in court, is unacceptable in the United States. We as American, pride ourselves as a country that believes in Civil Rights and Liberties. I
Congress has the power to raise armies, formally declare war on other nations to assist in protecting our countries security (Levin-Waldman, 2012). So allowing the War on Terror would seem like the right thing to do, but in all actuality who was being targeted. The Congress did not authorize the War on terror initially, because the war on terror was something new and nontraditional, but the Congress should have stepped in and went about this in a more Congressional type way. Supreme Court should have practiced a little bit of judicial activism when it came to Guantanamo Bay and its detainees.
The role of the judges that sit on the Supreme Court is to protect individual’s rights and liberties, the President and the Congress were acting in a way that violated these liberties. The Supreme Court should have stepped in and shot all of these issues down that were violating the United States Constitution when it came to civil rights and liberties. The War on Terror may have been necessary, but that could have been done without violating civil rights and liberties. Detainees and prisoners should have the knowledge of what they are being charged with or why they are being detained.
Terrorist or suspected terrorist deserve their day in court also they have some rights; they should not be tortured, starved or humiliated. Our national security should continue to be protected, there should still be security searches at airport and wherever else national security is taking place. War on Terror will probably be a continuing process, there just needs to be laws about how it’s done without violating civil rights. Was the President doing what he thought was the right thing to do when he suspended the habeas corpus or was he in the wrong and did he violate and disregard the Constitution.
After reviewing the history of habeas corpus and knowing when it should be used and when it should be suspended. While suspending the habeas corpus during the War on Terror is acceptable and is the Presidents way of protecting and preserving the United States Constitution. During the War on Terror were civil liberties violated and should habeas corpus have been suspended. Well that is a choice we all have to make on our own. References American Civil Liberties Union (2007). Habeas Corpus Timeline. Retrieved from http://www. aclu.
org/national-security/habeas-corpus-timeline A Constitutional History of Habeas Corpus (Book). (1982). Harvard Law Review, 95(5), 1186. Boumediene V. Bush: The Supreme Court’s War on Precedent Damages the War on Terror. (2009). Creighton Law Review, 42(3), 447-486. Chemerinsky, E (2005). Civil and the War on Terrorism. Retrieved from http://washburnlaw. edu/wlj/45-1/articles/chemerinsky-erwin. pdf Fontana, D. (2008). The Supreme Court. Dissent (00123846), 55(2), 68-74. Lobban, M. , & Halliday, P. D. (2011). Habeas corpus: From england to empire.
International Journal of Law in Context, 7(2), 257-269. doi: http://dx. doi. org/10. 1017/S1744552311000085 Levin-Waldman, O. M. (2012). American government. San Diego, CA: Bridgepoint Education, Inc. Merriam-Webster. com (2013). Retrieved from http://www. merriam-webster. com/dictionary/habeas%20corpus News. bbc. co. uk (2005). A Brief History of Habeas Corpus. Retrieved from: http://news. bbc. co. uk/2/hi/uk_news/magazine/4329839. stm The Characters of Freedom (n. d). Retrieved from: http://www. archives. gov/exhibits/charters/charters_of_freedom_1. html.