Presidential Prerogative to Suspend Habeas Corpus - Essay Example

of the of the of the Presidential Prerogative to Suspend Habeas Corpus Introduction In the aftermath of the 9/11 Islamic terrorist attacks, the legal section of the Bush Administration promoted the vision of vast executive power. This power was to enable the US President to take whatever action was necessary to respond or counter terrorist threats. In the days that followed, the Bush Administration made a number of attempts to increase its powers (Kakutani). There were several instances, where this endeavor was done in a clandestine manner. These expansion plans of the Bush Administration were done with scant regard for Congress and the judiciary. In fact, Bush authorized the National Security Agency surreptitiously, to overhear telephone calls and electronic mail messages sent from the US to other nations. In addition, Bush clearly indicated that he would be overlooking around 800 provisions of the laws relating to national security and disclosure. Bush engaged in action that challenged the authority of Congress to restrict coercive interrogation (Kakutani). Furthermore, the Bush Administration declared that the war powers vested in the President authorized him to detain people indefinitely and to deny these individuals, access to lawyers and courts. Consequently, on 13 November 2001, President Bush promulgated a Presidential Military Order, which allowed him to deprive suspects of habeas corpus proceedings. With this order, the President was empowered to detain non-citizen enemy combatants who were suspected of being associated with terrorism or terrorists. Such individuals could be detained indefinitely without charges being pressed against them, without a court hearing, and deprived of access to a lawyer (The Rutherford Institute). As such, George W Bush made a military order pertaining to the detention and trial of al Qaeda terrorists. It was stated in this order that suspected terrorists could be detained and put on trial for infringement of the laws of war. The president issued this order on the basis of his authority as the commander-in-chief and in response to the national emergency arising from the 9/11 Islamic terrorist attacks upon the US (Pfiffner 99). Bush ignored the cabinet level officers, during the development of this policy decision. In this regard, on 6 November 2001, John Yoo from the Office of Legal Counsel of the Justice Department made a draft of the order and decided that it was not necessary for the State Department to peruse it. Subsequently, on 10 November 2001, John Ashcroft attended a meeting relating to the draft memo. This meeting was presided over by the then US Vice President Dick Cheney. During this meeting, Ashcroft contended that the prosecution of terrorists was to be supervised by the Justice Department. This was rejected by Cheney, as he intended to make the trial of terrorists external to the judiciary of the US. After three days, this draft memo was signed by Bush (Pfiffner 99). As such, great care was taken to maintain the secrecy of this order, which was concealed from the other staff of the White House and cabinet secretaries. In addition, this order was projected as having been finalized by Cheney. The National Security Adviser Condoleezza Rice and the Secretary of State Colin Powell expressed dissatisfaction with the clandestine nature of the order. Furthermore, they were anguished with the absence of a regular policy process. As Rice and Powell were some of the highest level advisers to the US President, the order should have been brought to their notice, prior to its being signed by Bush (Pfiffner 99). In addition, this order was applicable to non-US citizens who were in the al Qaeda or who aided, abetted or engaged the al Qaeda; or who deliberately sheltered al Qaeda members. The Secretary of Defense was required by this order to detain these individuals, accord humane treatment to them, and provide them with essential facilities. Furthermore, their religious beliefs were to be respected, and they were to be detained according to the conditions stipulated by the Secretary of Defense (Pfiffner 100). Subsequently, several non-citizens, as well as American citizens had been detained and interrogated. It had been opined by a number of constitutional and legal scholars that these provisions were in direct contravention of the Constitution and the Bill of Rights, especially in the context of US citizens. This view was supported by the US Supreme Court, which emphatically stated that American citizens had a right to habeas corpus, despite being branded as enemy combatants (The Rutherford Institute). Moreover, this Court reiterated that the right of a citizen to habeas corpus could not be revoked. Nevertheless, the rulings of the US Supreme Court that habeas corpus rights were inviolate were overcome by Bush and Congress. This was achieved by passing legislation that was aimed at depriving the detainees at Guantanamo Bay of habeas corpus hearings. Specifically, Section 1005(e) of the Department of Defense Appropriations Act of 2006 had provided that “no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba.” (The Rutherford Institute). Furthermore, in Hamdan v Rumsfeld, the Court held that the military tribunals established by the Bush Administration were illegal, as they were not founded on US law. In addition, these military tribunals were deemed to be in violation of Common Article 3 of the Geneva Conventions (Pfiffner, The Contemporary Presidency: Constraining Executive Power: George W. Bush and the Constitution 129) In the above case, the petitioner pleaded with the court for a writ of habeas corpus. In this petition, he claimed that the military commissions established by the Bush Administration to try the Guantanamo Bay detainees breached the Uniform Code of Military Justice, as well as the Geneva Conventions. In its ruling, the US Supreme Court rejected the attempts of Congress to deprive it of jurisdiction over habeas corpus appeals by the Guantanamo Bay detainees. In order to overcome this serious setback, the Bush Administration and Congress enacted the Military Commissions Act of 2006 (The Rutherford Institute). This Act permitted non-citizen enemy combatants to be detained indefinitely without access to a lawyer in a military prison. In addition, James Pfiffner conducted a thorough review of the Bush Presidency. In this review he has pointed out the serious departures made by the Bush Administration from the status quo. Some of these being, first, denial of writ of habeas corpus to individuals categorized as enemy combatants. Second, suspending the Geneva Conventions and promoting severe interrogation techniques tantamount to torture. Third, directing surveillance of Americans, in the absence of a warrant, which is a legal requirement. Fourth, issuing signing statements that state that the President is entitled to disregard portions of the laws that he regards as interferences with his executive powers (Griffin 117). Moreover, after the September 11 Islamic terrorist attacks on the US, the Bush Administration had consistently maintained that the wartime powers of the President, which he enjoyed as the commander-in-chief, entitled him to detain without charge and indefinitely, any individual whom he classified as an enemy combatant. As a result of this prerogative of the President, more than 660 non-citizens had been detained at the facility in Guantanamo Bay (Parker and Fellner). The Bush Administration, in the context of the Guantanamo Bay detainees, had stated that their detention could not be reviewed by any regular court of the US. In addition, the Bush Administration brought about the formation of military tribunals to try non-US citizens suspected of being responsible for terrorist acts. These military tribunals had been accused of avoiding significant fair trial requirements, such as the provision of a proper opportunity to come forward with a defense, as well as the right to an independent judicial review (Parker and Fellner). The actions of the Bush Administration had been seen to promote the notion that the executive superseded the law, in the fight against terrorism. In several of its momentous rulings, the US Supreme Court frustrated the Bush Administration’s claims to executive supremacy and power. Thus, in Hamdi v Rumsfeld, the Court held that US citizens were entitled to contest their imprisonment in court. Moreover, in Rasul v Bush, the Court held that non-citizens could contest their detention, by means of a habeas corpus petition (Pfiffner, The Contemporary Presidency: Constraining Executive Power: George W. Bush and the Constitution 129). In the above case, the US Supreme Court declared that depriving detainees, access to habeas corpus protection was an infringement of the Constitution Furthermore, it was strongly contended by Bush that severe interrogation techniques were indispensable in the war on terror. The Bush Administration declared that legislation had to be enacted that would permit CIA interrogators much greater freedom than what was provided under Common Article 3 of the Geneva Conventions (Pfiffner, The Contemporary Presidency: Constraining Executive Power: George W. Bush and the Constitution 131). In general. Presidential power tends to be subject to judicial review. In several war on terror cases, the US Supreme Court had pronounced judgment. With changing circumstances, the judiciary could intervene in certain areas of presidential power to a much greater extent than in the past. Consequently, the constitutional law of presidential power can be seen to be judicially enforced to a very small extent, and it would be incorrect to describe it as being unenforceable (Bradley and Morrison 1131). Immunity doctrines, judicial deference to coordinate institutions, and justiciability limitations are a few of the reasons for concluding that the courts do not enforce the Constitution to the fullest extent. All the same, it is generally conceded by the scholars and the judiciary that the judicially under-enforced constitutional standards conserve the standing of law further than the scope of judicial enforcement (Bradley and Morrison 1131). It is in this scenario that one has to recall the system of checks and balances inherent in the US Constitution. This mechanism had been aimed at preventing the concentration of power in any one branch by the other two branches. Moreover, the basis of US polity was established on the principles of constitutionalism and the rule of law (Pfiffner, The Contemporary Presidency: Constraining Executive Power: George W. Bush and the Constitution 140). These fundamental principles had been violated by President Bush, due to his refusal to accept the constitutional limits to his executive authority. Conclusion In the aftermath of the 9/11 Islamic terrorist attacks, George W Bush violated constitutional powers, under the guise of war against terrorism. He expanded the powers of the executive to such an extent that, no person could question its authority for its action in any court. As such, the Bush Administration engaged in a number of constitutional violations. Some of these were, rejection of habeas corpus to persons identified as enemy combatants; endorsing severe interrogating procedures, which frequently involved torture; directing surveillance of Americans without a warrant; and disregarding laws that interfered with the President’s executive powers. With a view to circumventing the setbacks arising from the US Supreme Court decisions, the Bush Administration decided to enact legislation that would authorize the establishment of military commissions and specify restrictions on detainee rights. Consequently, the fundamental principle of checks and balances, which had always been integral to the US constitution, was ignored by the Bush Administration, in the period after the 9/11 Islamic terrorist attacks on the US. It can be surmised that the Bush Administration engaged in acts that effectively violated the US Constitution. Works Cited Bradley, Curtis A and Trevor W Morrison. "Essay: Presidential Power, Historical Practice, and Legal Constraint." Columbia Law Review 113.4 (2013): 1097-1161. Print. Griffin, Stephen M. Long Wars and the Constitution. Cambridge, MA, USA: Harvard University Press, 2013. Print. Hamdan v Rumsfeld. No. 548 US 557. Supreme Court of the United States. 29 June 2006. Hamdi v Rumsfeld. No. 542 US 507. Supreme Court of the United States. 28 June 2004. Kakutani, Michiko. "Unchecked and Unbalanced." 6 July 2007. The New York Times. Web. 23 November 2014. . Parker, Alison and Jamie Fellner. Executive Power after 9-11 in the United States. January 2004. Web. 23 November 2014. . Pfiffner, James P. "The Contemporary Presidency: Constraining Executive Power: George W. Bush and the Constitution." Presidential Studies Quarterly 38.1 (2008): 123-143. Print. Pfiffner, James P. Power Play: The Bush Presidency and the Constitution. Washington, DC, USA: Brookings Institution Press , 2009. Print. Rasul v Bush. No. 542 US 466. Supreme Court of the United States. 28 June 2004. The Rutherford Institute. Habeas Corpus. 2014. Web. 23 November 2014. . Read More