Habeas Corpus and the War on Terror

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  • Topic: Habeas corpus, Boumediene v. Bush, Military Commissions Act of 2006
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  • Published : October 8, 2012
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Habeas Corpus and the War on Terror
Nirvani McKinney
POL 201 American National Government
13th August, 2012
Instructor: Teri Kuffel

The history of Habeas Corpus and the war on Terror
In this paper I will be diving in to the history of Habeas Corpus and how it has evolved over the years. I will briefly explain the origination of the habeas corpus, the role it plays in U.S.A and what current action is being taken about it. I will be also looking in to the Bush administration and the way they dealt with habeas corpus. The original purpose of habeas corpus "was to bring people into court rather than out of imprisonment" and by the year 1230, the writ's utility for that purpose was a well-known aspect of English common law. Known as "the Great Writ," its codification into English law came by way of Parliament in the Habeas Corpus Act of 1641, created in response to the King of England's actions during what is now referred to as Darnell's Case. In Darnell, five English noblemen were thrown "into the castle's dungeon deep" for failure to support their country's dual wars against France and Spain. The men filed suit, requesting the King provide an explanation as to their imprisonment. King Charles refused, on review; the court upheld the monarchy's steadfast silence, stating that the law did not require the King to provide any justification for their detention. The public outcry against this decision was deafening, prompting Parliamentary action the following year. Parliament expanded habeas rights several years later with the Habeas Corpus Act of 1679, additionally requiring "charges to be brought within a specific time period for anyone detained for criminal acts." By 1765, habeas corpus was firmly imbedded within the foundation of English law, as noted by William Blackstone, who described the Great Writ as "a second magna carta, a stable bulwark of our liberties." This fundamental English right successfully traversed the Atlantic Ocean when our founders incorporated the doctrine of habeas corpus into the U.S. Constitution. As stated, "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. Known as the "Suspension Clause," this provision specifically places the ability to suspend habeas corpus in the hands of Congress only during times of rebellion or invasion. Despite the clarity of the clause, the American debate on habeas corpus only begins at this point. JACKSON, A. L. (2010). The 'Great Writ' of habeas corpus has long had an iconic status as the 'writ of liberty' which ensured that no person could be detained in prison without being put to trial by a jury of his peers. According to the traditional version, popularized by Whiggish constitutional writers from the late seventeenth century onwards, the English constitution as embodied in the common law had, since time immemorial, striven to protect the fundamental rights of Englishmen and women, which included the right to personal liberty obban, M., & Halliday, P. D. (2011). Habeas Corpus is an ancient common law prerogative writ - a legal procedure to which you have an undeniable right. It is an extraordinary remedy at law. Upon proper application, or even on naked knowledge alone, a court is empowered, and is duty bound, to issue the Extraordinary Writ of Habeas Corpus commanding one who is restraining liberty to forthwith produce before the court the person who is in custody and to show because why the liberty of that person is being restrained. Absent a sufficient showing for a proper restraint of liberty, the court is duty bound to order the restraint eliminated and the person discharged. Habeas Corpus is fundamental to American and all other English common law derivative systems of jurisprudence. It is the ultimate lawful and peaceable remedy for adjudicating the providence of liberty’s restraint. Robertson.J, (2002). After the attacks of 11 September 2001, came the...
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