Habeas Corpus and The War on Terror
POL 201 American National Government
September 23, 2013
Since September 11, 2001, Americans have faced a new enemy that is not distinguishable by conventional terms of the law of war. As a result of this fact, the detention of these enemy forces has brought about a large debate among, mostly, the Executive branch and the Supreme Court. At the center of the debate is the rights of the enemy detainees. The Supreme Court argues that because their detention is at a location that is under the complete control of the United States, their rights are blanketed under the Suspension Clause of the Constitution and as such, they should be granted the right to seek Habeas Corpus. The Executives maintain that unlawful enemy combatants have no rights under the Constitution of the United States and that the President retains full control over their detention. This paper will look at the English and American background of Habeas Corpus and how it plays into the landscape of war today. I will also briefly look at past suspensions of the writ, as well as the perspectives of the Executive, Legislative, and Judicial branches and how the writ applies to alien enemy combatants. I will also offer my own perspective on the same. Quite simply put, an unlawful enemy combatant caught fighting against the United States oversees and brought to a location that the U.S. does not have sovereignty over, should not be afforded the same rights as the citizens and alien residents of our great nation that they fight against. The ‘Great Writ’ of Habeas Corpus has its’ roots in English Common Law dating back as early as the 13th century. The literal meaning in Latin is “to have the body” which quite basically obliged that the jailor bring the accused before a court (the King’s Bench) to determine if his detainment and confinement was lawful. In fact, the writ was meant to regulate jailors, resolve issues with jurisdiction and monitor the powers of the magistrates (Halliday, J.D., 2010). It was not a tool used to release the prisoner, but a tool of governance. When the writ traversed the Atlantic Ocean and came to America, it was, and still is, considered the most important safeguard of personal liberty. Habeas Corpus is protected in the Constitution of the United States in Article 1, Section 9 wherein it 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” (Levin-Waldman, 2012). From its inception in the United States, Habeas has remained virtually unchanged. The Writ has only been suspended by the President and authorized by Congress four times in America’s history with the first instance when President Lincoln suspended it during the Civil War in order to detain opposing forces who were attempting to prevent troops trying to protect the Capital. Since then, it was used by Grant in the Ku Klux Klan Act, the rebellion in 1902 and in 1941 after the attack on Pearl Harbor (Jackson, 2010). Even during these times the suspension was lifted once the war or threat thereof was over (Langford, 2003) and those detained as a result were either released or tried and convicted. It wasn’t until the horrific attacks of September 11, 2001 where terrorist agents used commercial airplanes as weapons of mass destruction to kill thousands of innocent civilians within the borders of the United States that the issue of the suspension of Habeas Corpus came to the forefront once again. After the attacks, Congress wrote the Authorization to Use Military Force (AUMF), which granted the President to use “all necessary and appropriate force…against all nations, persons, operatives, etc. involved in the plotting and execution of the September 11th attacks…” (Piret, 2008). It is well known that the President’s first priority is that of Commander in Chief of the Armed Forces in times of...
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