Habeas Corpus: The Ultimate Writ of Liberty
POL201 American National Government
November 5, 2012
Habeas Corpus: The Ultimate Writ of Liberty
In time of war, many quick and unpopular decisions are inevitable. The decisions the President has to make must be in the best interest of the country, and of the world. Although war is unpopular with many people, it is unavoidable in certain circumstances. During wartime, many American people want known enemy combatants to have their rights upheld while being detained. Unfortunately, this is not always feasible. One has to understand that the taking of the liberty of a handful of people to save the lives of thousands, or even millions of people is an unavoidable act. When a citizen of a foreign country, or a citizen of America, who has turned to terrorism, goes to war with America, the rights given to American citizens by the Constitution should be denied. Wartime is never pleasant and it has the potential to causes the destruction of billions of dollars’ worth of property. However, the loss of life is much more devastating than the loss of property. During war, there are lawful enemy combatants captured by the opposing force and held for information or as bargaining tools. These lawful enemy combatants are known are prisoners of war (POW). If the enemy combatant whom is captured is not entitled to prisoner of war status because he or she does not meet the definition of a lawful combatant as established by the Third Geneva Convention, the prisoner is known as an unlawful enemy combatant (EC). In 2001, when President George W. Bush declared war on terrorism, the war was not against a country but against a particular group. Under the rules of the Third Geneva Convention, terrorists captured during the war on terrorism do not fit the criteria to be labeled a POW. Therefore, these combatants are considered unlawful enemy combatants not bound by the protection of the Third Geneva Convention. Since the war on terror started in 2011, there have been a number of lawsuits filed against the American Government claiming the detainees at Guantanamo Bay were having their rights to Habeas Corpus violated. A Writ of Habeas Corpus instructs a government, police, or anyone who is detaining an individual from his or her liberty, to immediately bring the accused before the court so the legality of the detention may be examined (A brief history of habeas corpus, 2005). However, President Bush declared the detainees as unlawful enemy combatants, thusly denying their right to Habeas Corpus. In the United States Constitution under Article One, Section 9, clause 2, it reads, “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.” (Transcript of Constitution of the United States, 1787). The fundamental right given to detainees by the United States Constitution, also known as Writ of Habeas Corpus, is nothing new to the world. The origins of Habeas Corpus can be dated back to British common law (Schultz, 2011). The Habeas Corpus Act was passed by British Parliament in 1679 and is said to have origins of Anglo-Saxon descent dating back to the middle ages (A brief history of habeas corpus, 2005). According to Sir William Blackstone, the first use of Habeas Corpus can be dated back to 1305. However, there were other Writs with the same influence being used in the twelfth century, which precedes the Magna Carta in 1215 (A brief history of habeas corpus, 2005). Habeas Corpus was first established in the United States by statute in the Judiciary Act of 1789. This lawful Writ applied only to detainees in custody by officials of the Executive Branch of the federal government, and not to those held by state governments. However, Article One, Section 9, clause 2 does not give the right to detainees to exercise their right to the Writ of Habeas Corpus; rather it...
References: A brief history of Habeas Corpus. (2005, March 09). Retrieved November 04, 2012, from BBC News: http://news.bbc.co.uk/2/hi/uk_news/magazine/4329839.stm
Boumediene v. Bush, No. 06–1195 (Supreme Court of the United States June 12, 2008).
Justice and Gitmo; The high court 's decision to weigh Habeas Corpus for detainees is a step toward restoring trampled freedoms. (2007, July 08). Los Angeles Times, p. M.2. Retrieved from http://search.proquest.com/docview/422272051?accountid=32521 on November 05, 2012
Robinson, K. (2011, June 26). Historians won 't convict Lincoln for suspension of Habeas Corpus. McClatchy - Tribune Business News. Retrieved from http://search.proquest.com/docview/873651368?accountid=32521
Schultz, D. (2011, July). Habeas Corpus after 9/11: confronting America 's new global detention system. Choice, 48(11), pp. 2190-2191. Retrieved November 05, 2012 from http://search.proquest.com/docview/877038974?accountid=32521
Transcript of Constitution of the United States. (1787). Retrieved from Our Documents: http://www.ourdocuments.gov/doc.php?doc=9&page=transcript
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