Civil Liberties, Habeas Corpus, and the War on Terror - Essay Example

? Civil Liberties, Habeas Corpus, and the War on Terror Since the 9/11 terror attack, the US government has always been on the alert for any terror activity that may be directed towards the country or may be viewed as a threat to national security. For quite a while now, repression has been the answer to questions regarding security threats to the US. These activities, when critically analyzed, have been digging deep into lack of freedom for no particular reason. This paper takes a look at civil liberties that citizens are entitled to and the violations of these rights that occur in the course of fighting crime. In addition, the paper examines the habeas corpus in relation to the war against terrorism and the Supreme Court’s involvement, the involvement of the President and Congress in decisions regarding habeas corpus. Civil Liberties, Habeas Corpus, and the War on Terror Following the September 11th attack, the US, then under the Bush Administration, viewed the act as an initiator to a war against the country. In addition, successive terror attacks in Bali, Madrid train attack and the London subway attack, the Bush Government saw enough proof that terrorism was escalating (Cole, 2003). The Government did not take these activities lightly as this saw immediate measures from it and allies against terror activities. Among this stern measures included military intervention into Afghanistan, capture, persecution, and in worst cases, the elimination of potential suspects in the terror activities. In addition, the War on Terror implemented methods such as detention centers for extra-judicial prisoners like Guantanamo Bay, rendition flights and new interrogation techniques among many others. Nature of the Writ Historically, the role of habeas corpus was to protect those arrested by the Executive without the involvement of any judicial activities. Since World War II, American lawyers associated the writ with a case where a federal court nullified the issues raised by a prisoner regarding the case in question. If anything, the only remedy in the Constitution is the writ which states that (Cole, 2003): “The Privilege of the Writ Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Strange enough, this is the only statement about the Great Writ found in the US constitution as opposed to the high regard in which it was held during its inception. It has been established that it is only the Federal Government that is limited to the writ and not the State. Attention has arose as to who should be given the authority to suspend the writ or rather determine the case in which suspension of the writ would be most appropriate. Initially, the power of suspending the law rested with the legislature but in early commentary, the power of the Congress to suspend the law assumed and stated by the Court. In early Civil War period, the privilege law was suspended by President Lincoln on his own motion only to be met with much resistance forcing him to seek for authorization from the Congress. Presidents, in times of wars and emergencies, have extraordinary authority accompanied with possession of executive powers that result in asserted violations of rights of the constitution and other known legal rights. When a dispute is taken to court, one side of the court is of the view that a ruling for the challenger would expose the security of the nation while the other side is of the opinion that the ideals that make the preservation of the nation’s security worth should be held at all costs. Many courts, in their habeas corpus jurisdiction, have handled issues regarding separation of powers during wars. The writ of habeas corpus is a mechanism in which the courts have insisted that none of the King, the President or any other official may subject someone to detention unless a court of law does so. As long as the writ runs and in any given circumstance, including war, the courts have the power to enforcement of the most basic law requirements of the rule. Many eyebrows have been raised as to which situations and where the writ should run; hence, whenever confirmation is needed, then it must come from the Supreme Court’s four decisions in cases involving war against terrorism. Rumsfield v. Padilla Jose Padilla, an American citizen who was arrested at O’Hare Airport in Chicago in May 2002 for allegedly planning to put together and blow up a nasty bomb in the US was imprisoned for more than three years and it was until November 2005 that he was indicted (Cole, 2003). Padilla was held by the government as an illegal combatant. Immediately after his arrest, Padilla was moved to New York where an attorney filed a petition to meet Padilla. The attorney filed the petition in a Southern District in New York and wanted to meet with Padilla. Afterwards, Padilla was shifted to a military prison in South Carolina leaving his case proceedings over his captivity and legal rights in New York finally landing in the Second Circuit. According to Cole (2003), the decision structure used was the 5-4 decision; where the Supreme Court had an opinion with majority of it written by Justice Antonin Scalia conclude that the petition of habeas corpus raised by Padilla could not be heard by the New York Court it had no jurisdiction. The Court declared that one must present their habeas petition where they are being held and the petition should be directed towards the person responsible for the detainment. To this effect, Padilla had to file another case in South Carolina directed towards the then head of the military prison. Padilla had remained in detention yet the Fourth Circuit never expressed that the five Supreme Court Justices had indicated that Padilla should be tried or set free. Hamdi v. Rumsfeld Guantanamo Bay was the destination of Yaser Hamdi, an American citizen apprehended in Afghanistan, who later was identified as an American citizen hence shipped to South Carolina was also held as an enemy combatant with no charges for any crime (Cole, 2003). The case of Hamdi is likened to that of Walker Lindh only that Lindh was guilty of crimes and was also indicted. According to an agreement by the Government and the Fourth Circuit, an American citizen arrested overseas and held in custody as an illegal combatant is not to receive any form of judicial review. In the Hamdi case, the Supreme Court reversed it hence the detainment of Hamdi. Hamdi filed a petition that he was detained against the Non-Detention Act that states that “no citizen shall be imprisoned or otherwise detained by the US except pursuant to an Act of Congress” (Cole, 2003). This did not succeed as the plurality decided that his detention was subject to an Act of Congress i.e. the Authorization for Use of Military Force which was passed shortly after the 9/11 terror attacks. Essentially, the court did not dictate any procedures to be followed in dealing with Hamdi’s case; the Justices obviously wanted a fair trial. Again, the Bush Government took centre stage in Hamdi’s case as the court went on to accept its claim that American citizens captured overseas can be held as illegal combatants. The court held that factual hearing needs to be given to citizens of America who are arrested in other countries before they are detained in the United States. This meant victory for both civil liberties and Hamdi in particular as he was set free after giving up his citizenship, agreeing to leave the country and never to deal arms again after the Government had negotiated a plea with him (Cole, 2003). Role of the President After the 9/11 attacks, the War on Terror stepped up and this saw President Bush endorse certain changes in the interrogation and prosecution process of suspected terrorists in a way that he said that will help keep the nation safe. Many protested against the signing of the law by President Bush and his members of Cabinet and legislators (Cole, 2003). The law was to limit most of the defendant’s traditional rights of the courtroom and restrict them of their ability to scrutinize the evidence that is being presented against them. According to Cole (2003), the bill has the particular techniques for interrogation that are outlawed and also spells out the retroactive lawful protection that is to be given to any military and/or intelligence persons who may have taken part in the interrogation of the suspects. In addition, Cole (2003) asserts that President Bush stated that the provision allows for the administration to take on an operation that was once viewed to be secret and undertaken by the CIA and go ahead to detain and use tough, rough and hostile techniques where necessary in order to get useful information about those plotting against the United States. A number of democrats criticized for enacting a policy that violated the civil liberties protections of the nation. In addition, human rights advocates have been against the use of aggressive and/or hostile methods by questioning the information obtained from the acts while saying that there is no good intelligence that will come from the use of interrogation practices that are abusive (Cole, 2003). Challenges associated with habeas corpus will keep on arising as long as there are executive detentions on war on terrorism. It is evident that American citizens detained overseas have very wide rights that the Supreme Court does not acknowledge that keep them free from being detained as illegal combatants or get punished for crimes without fair trial (Cole, 2003). The loss of freedom has increased leaving the country no assurance that it is safe from the loss of this liberty. In addition, it is believed that the Government would have been able to combat the terrorist attack just as effectively without breaching the Constitution and rule of the law. Reference Cole, D. (2003). Judging the next emergency: Judicial review and individual rights in times of crisis. Michigan Law Review, 101(8) 2565-2595. Read More