The Right of Habeas Corpus - Essay Example

? The Right of Habeas Corpus Introduction The attacks on the World Trade Centre towers in America on the 11th of September 2011 became a starting point to war on terror. The U.S government ultimately declared war on terror which later led to the death of Osama Bin Laden after a track period of ten years. It has compromised the liberty of civilians and the execution of justice on suspects, where institutions or individuals fighting for suspects’ rights face opposition from corridors of justice. This led to introduction of habeas corpus, which is a court order that directs a prison warden to produce and justify a prisoner’s detention (Longley, 2013). The work that follows discusses the right of habeas corpus in the war on terror and its historical evolution. Historical Evolution of habeas corpus According to English tradition, habeas corpus fought for liberty of citizens after English land owners forced it on King John in their constitutional document named Magna Charta (Halliday, 2010). The constitutional document declared that no seizure, imprisonment, exile or injury shall occur on anyone except by lawful judgment by the law of the land. In other words everyone had a right to freedom unless they pass through due law process. The common-law courts became the first to use habeas corpus in the thirteenth and fourteenth centuries competing with feudal courts, which local land owners controlled (King & Hoffmann, 2011:). These feudal courts had no consistency in their procedures, and the common-law courts began issuing orders demanding release of prisoners in the feudal courts. According to the U.S tradition, Americans believed habeas corpus as a weapon used to defend an individual’s liberty, and planned to protect it from suspension in times of peace through inclusion of a provision in Article I of their constitution (King & Hoffmann, 2011:). Since its inclusion in the U.S constitution, habeas corpus helped the federal government to guarantee federal law supremacy and reconstruction policies. Many years later, habeas corpus significance and relationship to protection of other civil liberties becomes evident as federal courts enforce federal laws against stubborn state officials (Doyle & Inkus, 2006). In today’s war against terrorism, habeas corpus checks abuse of government power on alleged terrorists or suspected aliens or criminals to ensure protection of individuals’ liberty. Examples from U.S. history of the suspension of habeas corpus and their applicability to the present There are several examples of suspension of habeas corpus in the United States history, which are in application at present. An example of habeas corpus suspension is during the reign of Abraham Lincoln. Although authorizing order of the suspension took place in the year 1861, the suspension took place in March 1863 (Dueholm, 2008). The orders given stated that, first, throughout the war period, any person committing a disloyal practice or giving aid to rebels against the U.S authority would be liable to punishment by military commission or courts martial. Secondly, the orders stated that the suspension of habeas corpus was in respect to all persons arrested in places confined by military commission or authority. As Article I in the U. S constitution stated, the government had authority to suspend the writ of habeas corpus incase there is risk of security, and when the public safety requires it. Lincoln got authority to suspend habeas corpus after Congress passed an act, two years to the war (Dueholm, 2008). According to the article, the president had executive power vested in them, which gave authority to conduct any changes in the government. The suspension of habeas corpus still applies at present, as the president still has powers to execute changes in the government. Another example in U. S history is seen when Bush signed a law in October 2006 that suspended the rights of habeas corpus to persons whom United States considered an enemy in the war against terror (Longley, 2013). However, this decision drew a lot of criticism because the signed law did not clearly state who would determine whether or not one is an enemy to the United States. An example of criticism, as Robert Longley points in his article came from Jonathan Turley, a professor of constitutional law at George Washington University, who termed the moment, a time of shame for the American system. (Longley, 2013) The two examples above show that the presidents wanted to protect the country in the event of national security threats however; they applied to persons detained in military prisons and who faced trial in military courts. These examples are in application in today’s war against terror in the United States. A viable evidence of their application manifests itself in the current United States president’s move to suspend habeas corpus for the American residents, leaving alone foreigners (Paye, J (2013). Although the suspension of habeas corpus got initiated during reigns of presidents in sixteenth and seventeenth centuries, it has got implemented during the reign of the current president Obama. As Paye points, the people of America elected Obama for presenting a future that would respect the rights of individuals and nations, however, certain activities like failure to close down Guantanamo Bay, and torture in Afghanistan among others is a clear indication of the continued Bush administration in Obama’s reign. The effectiveness of habeas corpus suspension began after The Patriot Act, which authorized foreigners suspected to have links to terrorist organizations to face detention without indictment (Paye, 2013). The suspension also applies to US citizens at present after President Obama signed The National Defense Authorization Act (4) on 31st December 2011. The Act gives authority for indefinite detention as long as the US executive designates them as enemies. Relevance of Habeas Corpus to Modern US situation on war on terror Many of the victims suspected to be enemies to US do not enjoy their fundamental rights after the present US government suspended habeas corpus from both citizens and foreigners who the executive term as enemy or illegal combatants. Having been set as a tool for fighting for individuals’ rights in US before the Civil War, habeas corpus had great relevance to individuals whom the executive terms as enemies. This is because its introduction aimed at ensuring rights for individuals, and failure on its suspension would help citizens fight for their rights (King & Hoffmann, 2011). Suspension of habeas corpus by US authority is a denial of individual rights, and this is why justice lacks to any individual or nation whom the authority terms as an enemy to the United States. Had it not have been suspended, nations and individuals would have the privilege for writ of habeas corpus and demand for justification of their individuals’ detention. There is no justice nowadays in the United States war on terror as a result of habeas and corpus suspension by the authorities. However, the suspension of habeas corpus has significance to modern US on war against terror. US Supreme Court’s interpretation of the right of habeas corpus According to Andrew Kent, the act by Military commissions in 2006 went against the US constitutional right. The US Supreme Court differed with the government over cases brought by foreigners detained at the Cuba Military facility in the Guantanamo Bay (Kent, 2008). The Supreme Court maintained that the constitution did not allow the government to prevent detainees from accurate habeas review as the right applied to everyone who is in a place under control of the United States regardless of nationality. This is according to the five-justice majority while the four opposing justices stood with the military commissions Act withdrawal of habeas jurisdiction. Perspectives on the right of habeas corpus Different people had different perspectives on the right of habeas corpus and roles played by each person. According to justices of the Supreme Court, the president plays a role in the suspension of habeas corpus in that, being the commander-in-chief of the armed forced, is above the law and has the power to change any law in the country. According to Dueholm, for example, the president has constitutional power to issue a warrant of arrest to anyone (Dueholm, 2008). This, the Supreme Court termed as going against individuals’ rights. The congress also plays a role in determining when habeas corpus can be suspended. As Dueholm points, the congress and the president have power to suspend habeas corpus. For, example, when Lincoln and Taney could not agree on suspension of habeas corpus during the case of Merryman, the court passed the action to the congress and the president (Dueholm, 2008). The Supreme Court has a role to play in protecting civil liberties, given that the president is above the law and justice may not prevail to detainees. For example, when the foreign nationals challenged their detention at Guantanamo bay, the US government violated detainees’ rights in the US constitution, but the court ruled against them, according to Kent. The court therefore has a role to play to ensure detainees acquire their rights. The philosophy of the constitution should guide the court to ensure detainees enjoy their constitutional rights. According to United States constitution, both local and foreign detainees are under the US constitution as long as their detention is in a place under US government. The balance between civil liberty and national security is hard to meet especially in a case where detainees have no access to their rights. Since the attack on United States by terrorists, the country has put measure to fight back terrorists, but there is no execution of justice to those detained (Kent, 2008). For example, the Guantanamo Bay among others is a place of torture to detainees where justice does not avail. As a result, nations whose citizens are detained keep on fighting back, thus, challenging the war on terror. Conclusion The introduction of habeas corpus in the US constitution aimed at ensuring that people do not miss their fundamental rights in corridors of justice. The US government however, has misused right of habeas corpus, an action that has led to increased war on terror due to violation of the constitution by the government (Dueholm, 2008). Practices that existed in Lincoln and Bush’s administration are evident in the present government, practices that become a hindrance to war on terror. References Deuholm, J.A (2008). Lincoln’s Suspension of the Writ of Habeas Corpus: An Historical and Constitutional Analysis. Retrieved on September 20, 2013 from http://quod.lib.umich.edu/j/jala/2629860.0029.205?rgn=main;view=fulltext Doyle, C., & Inkus, S. W. (2006). Federal habeas corpus. Hauppauge, N.Y: Nova Science Publishers. Halliday, P. D. (2010). Habeas corpus: From England to empire. Cambridge, Mass: Belknap Press of Harvard University Press. Kent, A. (2008). ASIL Insights. Retrieved on September 20, 2013 from http://www.asil.org/insights080620.cfm King, N. J., & Hoffmann, J. L. (2011). Habeas for the twenty-first century: Uses, abuses, and the future of the great writ. Chicago: The University of Chicago Press. Longley, R (2013). Bush and Lincoln both Suspended Habeas Corpus. Retrieved on September 20, 2013 from http://usgovinfo.about.com/od/rightsandfreedoms/a/habeuscorpus.htm Paye, J (2013). The Suspension of Habeas Corpus in America. Retrieved on September 20, 2013 from http://www.globalresearch.ca/the-suspension-of-habeas-corpus-in-america/5311701 Read More