Historical Evolution of Habeas Corpus - Assignment Example

HISTORICAL EVOLUTION OF HABEAS CORPUS s Habeas Corpus Introduction A writ of habeas corpus is a Latin word which means a court order that requires a person under arrest to be brought in front of the court. Writ means a court order while habeas corpus means you may have the body. The importance of this principle is that it ensures that any prisoner is not released from any unlawful detention which may accrue due to lack of evidence. This principle originated from the English judicial system and now applies to almost all the countries in the world. This principle historically was used as a sign of individual freedom against arbitrary state actions. This principle also allows the prosecutor to bring forth proof as to why a person may be lawfully detained or not and this is mainly done when a person is brought forward in the court. However, two US Presidents have seen suspension of this law on the grounds of civil war and war on terror (Clark, 1998). President Lincoln was one of those who suspended this law and also President Bush. These presidents faced a lot of criticisms on their actions but they were right in one way or the other. Thesis Statement Habeas Corpus has a long history since its inception. It is still an important principle that has been applied in America and other nations. This paper analyzes the historical evolution of habeas corpus and its importance. Two American Presidents have been on the spot for suspending this law. The paper analyzes their reasons behind their actions for suspensions. This paper also seeks to look at the Supremes Court interpretation of this law and why they found it easy to fault any the two American Presidents who suspended this law. This paper also analyzes the power behind this law and their powers to suspend this law or to bring it back into law. Suspension of Habeas Corpus President Bush and President Lincoln had at one point been forced to suspend the law regarding habeas corpus to people who seemed to be enemies of the US especially with respect to global war on terror. On October 2006, President Bush put into pen a law that saw the suspension of the right of habeas corpus to US enemies whom are considered as terrorists. This action led to several criticisms especially from law historians and many legislators that had been applying this law. According to Military Commissions Act of 2006 signed by President Bush the writ habeas corpus was suspended and this drew critics like Jonathan Turley who insisted that this was a shame to the Americans (Dealy, 2007). This bill provides any US president to almost all unlimited powers to establish and try any person viewed as an enemy of the US to be tried and brought to justice. On the other hand the law also suspends the right of “unlawful enemy combats’ in the war on terrorism globally. Bush made it categorical in writing that no court or any justice in the US has the jurisdiction or the writ of habeas corpus to detain or try an enemy combat of the US (Katyal, 2007). However, it can also be remembered that President Lincoln was the first President to suspend writ of habeas corpus during the early days of civil war in US. Lincoln based his action on the fact of civil war. Lincoln did not also escape criticism. Both presidents have been viewed as attacking the constitution. In 1861 President Lincoln ordered that write habeas corpus be suspended amid the beginning of the civil war in America. This suspension however served in Maryland and Midwestern States. This decree was further extended nationwide in 1862 after it was established that some judges applied the law in areas which had not been included in the Act which helped in accelerating the American Civil War. However, this law was further restored in 1866 by the courts which declared that the military trials were illegal in areas in which the civilian courts could be able to operate. Legal Analysis of Bournediene vs Bush There have been several challenges brought out by lawyers concerning the President Bush’s action to suspend writ habeas corpus law. In one recent case, United States Supreme Court made a ruling that part of the Military Commissions Act was unconstitutional when they refused the hearing of four Guantanamo’s who had been detained as terrorist suspects (Fallon Jr., 2010). In a historic ruling Justice Kennedy declared that the Guantanamo’s had the right of filing petitions for habeas corpus in US since they were wrongfully being detained. Under the same reasoning the court criticized the Presidents Bush action and argued that this was an attempt to declare that the four suspects were not within the sovereignty of the US yet they were being detained. Justice Kennedy declared this as a wrongful act and the constitution was to apply by granting these suspects the writ of habeas corpus. The Supreme Court of the United States then moved forward and declared the suspension of the clause for the four detainees under the following reasons. One is that the Guantanamo’s were not citizens of American and their determination as enemy combatants by the CRST’s was unfair in this proceeding. Secondly, the US was applying the use of excessive force and control of its jurisdiction over Guantanamo and finally there was no evidence or argument that the habeas corpus is likely to impede any military mission in Guantanamo (Fisher, 2003). According to a recent New York Times article, the President of the Unite States has National and Supreme powers as well as being the commander in chief of the Navy, Army, and Military. Under the constitution Article 2d section 1 states that the, “ the executive power shall be vested in the President of the United States of America (New York Times, 1861). Despite all this privileges, it is also important to note that the national constitution has no limitations when it comes to full exercise of military powers of the commander in chief of foreign war or of rebellion. For this reason, the President always makes the final judge. This loophole is what President Bush utilized that consequently led to the suspension of the writ habeas corpus law. It is for this reason that also President Lincoln was able to exercise his authority and suspend the habeas corpus law when he sensed political uprisings. Currently under article 1 section 9 clause 2, “ the privileges of the writ of habeas corpus shall not be suspended unless when in cases of rebellion of invasion the public safety may require it.” From this statement it is clear that the constitution is not providing any relief for the right to create habeas corpus, the federal courts have the authority to grant state prisoners the relief of habeas corpus (Cole, 2003). This was also the reason why the federal courts came out strongly when Bush had ordered that the four Guantanamo suspects not be offered with the writ of habeas corpus. It should also be noticed that only the congress has vested powers to suspend the writ of habeas corpus by taking an affirmative action or through delegation of the same right to the Executive. It should however be clear that the Executive has no clear authority to suspend the writ and must therefore wait for a declaration from the Congress. Over the past, the Congress has explicitly provided authorization to federal prisoners to be awarded with writ of habeas corpus. A similar case was in 1789. The Congress has been narrowing down on it power to offer writ of habeas corpus. In 1996, the congress decided to follow the guidelines of the Antiterrorism and Effective Death Penalty Act (AEDPA) before awarding writ of habeas corpus (Niday, 2008). This further narrowed down to 2005 when a case regarding the four Guantanamo detainees was heard and ruled in court. The congress then decided to consider their action when the supreme court ordered that the detainees designated under enemy combatants were held outside the United States and that they had the right to be granted writ of habeas corpus. Conclusion In my opinion the law regarding writ of habeas corpus is very important to any individual as this may help prevent cases of wrongful detention. I also believe Lincoln and Bush had the best reasons vested in them when they decided to suspend this law. This is because both their actions helped in reducing instances of civil war and terror in the US. When it comes to national security, the right of an individual person is not important but the protection of the whole nation is. One of the wittiest phrase declared by the late Prof George Saitoti a Kenyan politician is that, “it comes a time when the country is more important than an individual”. It is therefore important that at certain crucial times when a country is facing high chances of terrorism to suspend habeas corpus as a way of declaring protection to the country. However, under certain circumstances it is important to grant habeas corpus to people who need it since it is their constitutional right. In these cases a party may win or lose a case under which it is lawful. This ensures that these parties’ rights are not infringed. References Clark, D. a. (1998). Habeas Corpus. London : Pearson. Cole, D. (2003). Cole, D. Michigan Law Review, 101(8), 2565-2595. Dealy, J. (2007). Subordination of powers: Hamdan v. Rumsfeld. Harvard Journal of Law and Public Policy, 30(3), 1071-1084. Fallon Jr., R. (2010). The Supreme Court, habeas corpus, and the war on terror. Columbia Law Review, 110(2), 352-398. Fisher, L. (2003). Military tribunals: A sorry history. Presidential Studies Quarterly, 33(3), 484-508. Katyal, N. B. (2007). Terrorism, emergency powers, and the role of the U.S. Supreme Court. Ratio Juris, 20(4), 443-455. New York Times. (1861, September 10). Power of the President as Supreme Executive and Commander-in-Chief. Retrieved 2014, from New York Times: http://www.nytimes.com/1861/09/10/news/power-of-the-president-as-supreme-executive-and-commander-in-chief.html Niday, I. (2008). The war against terror as war against the Constitution. Canadian Review of American Studies, 38(1), 101-117. Read More