Habeas Corpus and the War on Terror

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  • Topic: Habeas corpus, Laws of war, Unlawful combatant
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  • Published : November 25, 2012
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Habeas Corpus and the War on Terror
Ian T. Snyder
POL 201
Pearl Galano
October 20th 2012

Habeas corpus is considered to be one of the most fundamental guarantees of personal liberty we have enjoyed as a country since the inception of our Constitution. However, questions have arisen regarding the proper use of habeas corpus and have been brought into focus in the past decade. In the years since the September 11, 2001 terrorist attacks, hundreds of people have been detained by the United States government as part of its war on terror. Most of these detainees face indefinite detention and have neither been charged with a crime nor afforded prisoner of war status. Habeas corpus serves to protect citizens against arbitrary arrest, torture, and extrajudicial killings and is a fundamental personal liberty guaranteed by our Constitution and cannot be suspended based on that fact. Habeas corpus (or writ of Habeas corpus ) is a judicially enforceable order issued by a court of law to a prison official ordering that a prisoner be brought to the court so it can be determined whether or not that prisoner had been lawfully imprisoned and, if not, whether he or she should be released from custody. The right of habeas corpus is the constitutionally bestowed right of a person to present evidence before a court that he or she has been wrongly imprisoned. The rights of writs of habeas corpus are granted in Article I of the Constitution, which

States, "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."( Habeas Corpus in times of Emergency; Iowa State Review) A Habeas Corpus petition is a petition filed with a court by a person who objects to his own or another's imprisonment. The petition must show that the court ordering the imprisonment made a legal or factual error. The right of habeas corpus is the constitutionally bestowed right of a person to present evidence before a court that he or she has been wrongly imprisoned. History

The history of Habeas Corpus is ancient. It appears to be predominately of Anglo-Saxon common law origin, although the precise origin of Habeas Corpus is uncertain. Its principle effect was achieved in the middle ages by use of similar laws, the sum of which helped to mold our current policies. Habeas Corpus has since the earliest times been employed to compel the appearance of a person who is in custody to be brought before a court. Habeas Corpus was generally unknown to the various law systems of Europe which are generally devolved from Roman law. European civil law systems tend to favor collective authority from the top down while the Anglo-Saxon common law tends to favor the individual. As a feature of common law, the right of Habeas Corpus reflects the age old contest between the individual and the state. Habeas Corpus empowers the individual in holding accountable the exercise of the states power to influence liberty. The War on Terror

In the years since the September 11, 2001 terrorist attacks, hundreds of people have been detained by the United States government as part of its war on terror at locations such as the Guantanamo Bay Naval Base in Cuba and Bagram Airfield in Afghanistan. Most of these detainees have faced indefinite detention and have neither been charged with a crime nor afforded prisoner of war Status. Many of these detainees have sought to use habeas corpus proceedings to challenge the legality of their detention. The United States government initially took the position that habeas corpus was not available to detainees because of their status as “enemy combatants” and their location outside of the sovereign territory of the United States. In 2004, the United States Supreme Court determined that non-citizen detainees at Guantanamo Bay were entitled to file habeas corpus petitions in federal courts. Congress subsequently made a political...
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