Writ of Habeas Corpus in the Context of the War on Terror - Essay Example

Writ of Habeas Corpus in the Context of the War on Terror Writ of Habeas Corpus in the Context of the War on Terror Habeas Corpus inEngland First recording of the writ of Habeas Corpus was during the 12th-century reign of King Henry II of England. The original version of the writ declared that the king had the authority to know the reason for detaining any of his subjects at any given time. In particular, it states that there shall be no imprisonment, sending into exile or alienating any Freeman from his liberty without any lawful recourse to justice. Historical records show that the first instance of the usage of the term ‘habeas corpus’ was during 1305. However, up until this time, majority consider this law as part of the Magna Carta (Linebaugh, 2008). Signing into law of the Magna Carta was occurred in 1215 by King John. It gained significant political and legal prominence during the preceding centuries. During the early 12th century, King John of England was hugely unpopular in his country and was at constant conflict with some wealthy oil barons. The archbishop of Canterbury, in an effort to protect the rights of the church and make the king and the barons be at peace, conceived the Magna Carta. Magna Carta turned out as the Great Charter of the Liberties. The Charter promised the protection of the church’s rights from interference either by the king or the rebel barons. It also promised the barons protection from unfair or illegal imprisonment and limitations to the feudal payments to the crown. A council of 25 barons were necessary for the implementation of the feudal payments (Davis, 2010). King Edward in 1297 later issued this charter in a bid to raise taxes for his indebted monarchial government and to win political support. Edward institutionalized it as part of the Statute Law hence Giving birth to the genesis of the Habeas Corpus. In the early 16th century, a prominent lawyer who was also a politician; Sir Edward Coke advocated for common law to override the authority of the king. In addition, the advocacy was for the establishment of a civilian power and extension of the civil liberties of the freemen (Halliday, 2010). Coke was instrumental in the drafting of the petition of right. This petition later formed the basis for the English constitution and allowed for specific liberties. Aside from limiting the king from invoking martial law during the times of peace, the petition of right also permitted prisoners to give their views in the circumstances where their detention was questionable. Habeas corpus in England originated among the powerful ruling elites whose intention was to put limitations on the powers of the monarchy. However, over the centuries it evolved to embrace the common man and became integrated as part of the common law. Although the rights of nobles had intended it for the protection of the political prisoners, most of whom were the dissenting nobles received heavy sentences at the whims of the ruling monarch. The writ later grew to embody the rights of individuals that every citizen enjoyed. Coke relied heavily on the provision of the writ of habeas corpus to strongly advocate the petition of rights (Halliday, 2010). This was more like an original version of the bill of rights. The petition of right and its reinterpretation of the habeas corpus had a great impact on the overseas colonies of the British Empire. More importantly, it greatly altered the legal environment in the American states, which were in the British colonies and had started agitating for independence. Habeas Corpus in the US The popularity of the Magna Carta in England was exported to the thirteen colonies in America. While the habeas corpus in England began as an instrument of protecting the powerful rebel barons against illegal imprisonment by the King, in America, it began as a core protection for which every American citizen could enjoy. It laid a stronger basis for the American liberty clause in the constitution. However, the access to the privileges of the habeas corpus was only limited to the American citizens. It did not extend to the slaves kept by their masters or any descendant of a slave within the American context. Key among the most contentious cases in the History of the US, the Supreme Court in 1857 ruled against a slave who petitioned the court by invoking the writ of habeas corpus against his master. The court held that being a descendant of a slave, the Dred Scott was not recognized as a person in the American constitution. Thus, he could not enjoy the rights to habeas corpus (Mcelroy, 2009). The case came to define to a great extent the application of the writ, and it became increasingly associated with slavery. President Lincoln, at a time of the Civil War in US, suspended the writ of habeas corpus. The object for the suspension was to protect the state from the potential backlash of cases that could result from the captives of war who were military held. The conventional reasoning was that the suspensions were for the common good of the American interests. Lincoln’s suspensions were soon overturned by the court, but he conveniently ignored them as the police and military and the police persisted in arresting and detaining individuals who publicly expressed anti-war dissents. Lincoln later received a major boost when the Congress upheld his suspensions in 1862 and passed a law that would protect any such suspensions issued during the course of the war. Application of the Writ in the history of the US (Boumediene v. Bush and other consolidated cases) Over the years, there has been varied application or suspension of the writ by successive US governments and the Congress. In the most recent and controversial case is in regards to the plight of Guantanamo Bay prisoners (Pond, 2009). These are the prisoners who were picked up during the US war in Afghanistan. First, it is imperative to note that the Guantanamo Bay prison is a facility that the US government leased from the Cuban authorities. The facility does not fully fall under the legal jurisdiction of the US courts (Garcia, 2008). In choosing to locate its detention camps there, the US government intended to avoid the backlash that could emanate from the prisoners seeking legal redress in the US courts. The prisoners suffered humiliating condition in Cuba while a host of lawyers argued their cases before the US courts. Recording of several of these cases is in the Boumediene v. Bush. In one of the sittings of the Supreme Court, the judges held in a 5-4 ruling that the war prisoners at Guantanamo Bay had a right to a constitutional privilege of the habeas corpus (Garcia, 2008. Pp1). The court also found section 7 of the military commissions’ Act, which banned the judicial review of the petitions of enemy combatants. The judges held that the Military Commissions Act did not provide an adequate substitute for the right of habeas corpus. For this reason, it was difficult to exercise it without infringing the legal rights of the accused (Batten, 2011). This decision by the judges means that the detainees in the Guantanamo can seek recourse to the great writ and even sue the state for illegally detaining them without trial. Habeas corpus states that no individual should be deprived of their loyalty without having been tried and found guilty of crimes committed by them. In the ruling, the judges sought a clear interpretation of the areas of jurisdictions covered by the writ as well as its application. In addition, they sought clarity from the founding philosophy on how to apply the writ (Jackson, 2010). The latter was relating to cases in which foreign citizens get arrested in foreign lands and detained in the correction facilities of the US. In the ruling, the court demonstrated that it was well aware of the writ and its jurisprudence. Thus, it did not intend to foreclose the possibility of the protections guaranteed by the suspension clause that was expandable along the developments following the 1789 declaration of the writ. The clause was deemed to protect the recourse to habeas corpus in the form in which its passage into law occurred when the nation’s constitution was first passed. In the observation of the historical developments and instances of applications nods the writ, the court found that there was little guidance offered by the historical records. Thus, the courts in common law had practically no experience in handling the cases like those o Guantanamo Bay detainees. Presidential Authority to Suspend the Great Writ Throughout history, US presidents have been faced with the dilemma of fundamental individual freedoms guaranteed by the American constitution and how to further the country’s national interests. All wartime presidents from Lincoln to Nixon to Kennedy and even Reagan among many others have always taken what could pass as unilateral decisions. Such decisions could send the American troops to war without the approval of the Congress (Fisher, 2015). In all these circumstances, the application of the writ of Habeas Corpus has been sidestepped as the leaders seek to protect the territorial borders of the US against foreign aggression. In many cases, the freedom of speech has been the biggest casualty because of its regular subjection to restrictions and limitations during war. The only other privilege that the Constitution provides that can be suspended is the writ of habeas corpus (Fallon Jr. & Meltzer, 2007). The Constitution makes available that there shall be no suspension of access to the privilege of the great writ. However, in cases where an invasion or rebellion against the public interest may require that its withdrawal (Paschal, 1970, pp 10). In the highly sharply divided ruling in the Boumediene v. Bush, Justice Antony Kennedy, writing for the majority decision ruled that the Bush administration could not us the Guantanamo Bay facility. Bush wanted to use it as a kind of legal limbo in which it could detain prisoners of war without any regards to the human rights or being answerable in any court of law. The suspension clause in section 9 of the Constitution gives the president the authority to suspend the writ of habeas corpus during the times of war. References Batten, D. &. (2011). Gale Encyclopedia of American Law. Detroit, Michigan: Gale. . Davis, G. R. (2010). Medieval Cartularies of Great Britain and Ireland. London: British Library. Fallon Jr., R. H., & Meltzer, D. J. (2007). Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror. Harvard Law Review, 120(8), 2031–2112. Fisher, L. (2015, March 2). Cornell University Law School Website. Retrieved from Legal information Institute: https://www.law.cornell.edu/wex/commander_in_chief_powers Garcia, M. J. (2008). CRS Report for Congress. Washington: Congressional Research Service. Halliday, P. D. (2010). Habeas Corpus: From England to Empire. . Cambridge, Massachusetts: Belknap Press of Harvard University Press. Jackson, A. L. (2010). Habeas Corpus in the Global War on Terror: An American Drama. Air Force Law Review, 65, 263–288. Linebaugh, P. (2008). The Magna Carta Manifesto: Liberties and Commons for all. Berkeley: University of California Press. Mcelroy, W. (2009, 10 23). Foundation for Economic Education (FEE). Retrieved from FEE website: http://fee.org/freeman/detail/the-great-writ-then-and-now PASCHAL, F. (1970). THE CONSTITUTION AND HABEAS CORPUS. Duke Law Journal, 12. Pond, B. C. (2009). Boumediene v. Bush: Habeas Corpus, Exhaustion, and the Special Circumstances Exception. Brigham Young University Law Review, 2009(6), 1907–1933. Read More