Civil Liberties, Habeas Corpus, and the War on Terror

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Civil Liberties, Habeas Corpus, and the War on Terror
Jennifer Proctor
POL201: American National Government
Instructor: Luke Martin
10/29/12

Habeas Corpus has been around for very many years. Although no one knows its exact origin it still dates back pretty far. Habeas Corpus has been seen as a good thing and a bad thing. It has been around for every war we have had. It has also been suspended by two of our presidents in the past. The story and history of Habeas Corpus is a very old one but it is also a very interesting one too.

Habeas corpus, a Latin term meaning "you have the body," an important right granted to individuals in America and refers to the right of every prisoner to challenge the terms of his or her incarceration in court before a judge. Basically it means that a judicial mandate require that a prisoner be brought before the court to determine whether the government has the right to continue detaining them. The individual being held or a person representing them can petition the court for such a writ.

The English history of Habeas Corpus is ancient. It clearly dates back to Magna Carta times in 1215, but its actual origin is still uncertain. Habeas Corpus was originally the order of the King and his courts but in the years passed became the right of the person being detained or someone acting on their behalf rather than the king and his courts. There is a quote from Magna Carta that states, ‘’no free man shall be taken or imprisoned or disseized or exiled or in any other way destroyed except by the lawful judgment of their peers or by the law of the land’’.

Habeas Corpus was unknown to many civil law systems in Europe. European civil law system generally favored authority from the top down whereas Angelo-Saxon common law tends to favor the individual. The Angelo-Saxon common law comes from England. After the English Civil War and the beheading of King Charles I in 1649 is what led to the establishing of the clear position between King and citizen. All the confrontation of top to bottom civil law principles continuously kept yielding with the ancient but good old ‘’law of the land’’.

Habeas Corpus is one very important common law and the right of Habeas Corpus reflects back on an ancient contest between state and individual. The English common law gave English courts the power to issue the order of Habeas Corpus even when the court isn’t in session, and if the judge disobeys the enactment there would be significant penalties. Even though there was a lot of different opinions and beliefs surrounding the practice of Habeas Corpus during the 17th century it continued establishing itself and by the 19th century it had further expanded.

By the time of the American Revolutionary War the order of Habeas Corpus was pretty much established in all colonies. Habeas Corpus was added into the United States Constitution. Article I section 9 of the U.S. Constitution reads ‘’ The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Case of Rebellion or Invasion the public safety may require it’’. It is important to see that the framers of the U.S. Constitution choose to include in the Constitution the Writ of Habeas Corpus while other important individual rights, such as an afterthought, were included in the first ten amendments which were known as the Bill of Rights. The “afterthought”, also known as the Bill of Rights, was not included even as amendments until James Madison persistently, and successfully, argued before congress for the adoption and passage on December 15th 1791, for almost 2 years after the Constitution was ratified. This fact sheds light on the importance of the Writ of Habeas Corpus as seen by the framers of the American Constitution at the time it was established.

In 1861 right after the start of the American Civil War President Lincoln ordered a suspension of Habeas Corpus. It only applied to Maryland...
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