Habeas Corpus and its Applicability in the United States - Essay Example

This paper talks about habeas corpus and its applicability in United s. This paper examines the historical evolution of habeas corpus. In examining its historical evolution, this paper looks into both the American and the English traditions. This paper would also analyze the relevance of this concept of habeas corpus, in the current war on terror. More specifically, in regard to people who are seen as illegal combatants or enemy combatants. This paper would also examine the interpretation of the Supreme Court in regard to the right of habeas corpus. It would also examine four perspectives, in regard to this concept of habeas corpus. These views are from the commentators in the academic and popular media, leaders of government, and judges of the Supreme Court. This paper takes a stand that the writ of habeas corpus is very a very controversial topic that attracts support and dissent in United States. Habeas corpus refers to a legal action, whereby detainees can seek relief from the courts, because of unlawful imprisonment (Freedman, 2001). The suspension clause, contained in the constitution of United State demands that the privileges of habeas corpus will not be under suspension, unless it is a serious case of rebellion, or even the safety of the public is under threat. This aspect is borrowed from the English common law doctrines, under article 1 S9 (2) of the English laws. The law of United States gives people the right of petitioning the federal courts for the writ of habeas corpus. These petitions are normally viewed as pro se cases, where the government is given an order to appear in court, and respond to the allegations of the detainee. Individual states have also allowed their citizens to petition their court system in regard to the right of habeas corpus (Freedman, 2001. This is pursuant to their constitutions (McDonough, 2008). Initially, the benefits of habeas corpus were not extended to the people who were held under the state custody. However, with the emergence of the reconstruction act, the federal courts had the mandate of issuing this writ to any person who was held in American prisons or jails. Currently, the general law that governs the adoption of habeas corpus is 28 U.S.C. § 2241 (Turley, 2015). This law identifies the institutions that have the power of granting the writ of habeas corpus, and circumstances where this writ of habeas corpus can be granted (Freedman, 2001. Habeas corpus emanates from the doctrines of the English common law (Garrett, 2011). It was first used during the leadership of King Edward the 1st. Then Habeas Corpus act of 1679 was the first law that codified the principles and procedures of carrying out the writ of habeas corpus. This came into existence after the judicial rulings in England that made a restriction on the effectiveness and application of the writ. A victim was allowed to issue this writ of habeas corpus to a superior court in the United Kingdom, in the name of the reigning monarch (Free Dictionary, 2015). The intention of this writ was to command a lower court, or a sheriff to produce a detainee to the Royal courts. It was possible to make petitions to the writ, by the detainee himself, or even a third party. This was on behalf of the prisoner. Based on this fact, it was possible to issue the writ of habeas corpus regardless on whether the trial was on session or not. The habeas corpus act of 1679 is currently an important law that governs this principle of habeas corpus in the 21st century cases that are found in United Kingdom (Freedman, 2001. The United States constitution has borrowed some of these principles of habeas corpus, and incorporates it, into its laws. With the declaration of independence from the thirteen American colonies, America becomes a republic through popular sovereignty. Based on these facts, anybody within the republic had the right of initiating such kind of writs (McDonough, 2008). The US constitution recognizes the principles of habeas corpus in clause 2 articles 1, section 9 (Freedman, 2001. This principle denotes that it would be impossible to suspend the principles of habeas corpus, unless there is a threat to public safety, or there is an existence of a rebellion. Furthermore, it is only the congress that has the power and capability of suspending or legislating any issues regarding this principle of habeas corpus (Garrett, 2011). The writ of habeas corpus is a civil proceeding, and it is used to analyze on whether the court which gave out a sentence, had the jurisdiction of issuing the sentence under consideration. Furthermore, this concept is used to protect the defendants against unjustifiable prison sentences (Harriger, 2010). It is also used for purposes of challenging other types of pre-trial detentions, such as the ones which are routinely carried out by the department of immigration and customs enforcement. Habeas corpus has undergone some suspension in United States. There are two major instances where the writ of habeas corpus has been suspended in the United States. One of the most notable instances is during the presidency of Lincoln, during the American civil war. During this case, Maryland officials who were against the war conspired to destroy a rail road, which was an important supply route for the US army which was preparing to, fight the Southern army (Freedman, 2001. President Lincoln suspended the writ, and arrested John Merryman, a congressman from Maryland, the entire police board of Maryland, and the city council of Baltimore. These people were imprisoned without any trial. The action by President Lincoln was challenged in court, under the case of Ex Parte Merryman (Garrett, 2011). The Supreme Court under Justice Taney gave a ruling that the suspension of the writ of Habeas Corpus was unconstitutional. The court further ruled that it is only congress that had the power and capability of suspending the application of the writ of habeas corpus. However, Lincoln was adamant, and he continued with the suspension of the writ. Another instance occurred during the Second World War, after the attack of the Pearl Harbor. During this point of time, thousands of American Japanese were sent to imprisonment camps, despite the illegality of such detentions (Mossin, 2002). Furthermore, the governor of Hawaii was able to invoke the Hawaii Organic Act, hence suspending the writ of habeas corpus. During this period, the governor was able to declare the martial law (Forsyth, 2010). However, this was challenged in the 1946 case of Duncan v. Kahanamoku. In this case, the court held that the trial of civilians under martial law is illegal, for crimes that are not related with military matters. However, in the 1942 case of ex parte Quirin, ruled that a military tribune has jurisdiction to investigate and try foreign saboteurs (McDonough, 2008). This is because they are unlawful combatants, hence they could not benefit from the privileges of habeas corpus. This was a case in which eight German saboteurs were able to enter in United States, for purposes of carrying out espionage and saboteuring activities. By the end of the year 1944, the threat that was posed by United States had receded (Harriger, 2010). On this basis, civilian courts in Hawaii began to function. The organic act was therefore rendered useless. Furthermore, after the end of the Second World War, German prisoners who were held in German areas occupied by America sued for the writ of habeas corpus. However, in Johnson vs. Eisentrager, the court ruled that it did not have any jurisdiction on war criminals that were held in territories that did not belong to United States (Garrett, 2011). Based on these facts, the writ of habeas corpus is only applicable to criminals who are found in the American soil. Furthermore, the writ of habeas corpus is not applicable to enemy combatants, who have entered in United States illegally. This is better depicted by the laws signed by President Bush and President Obama. The 2001 Presidential military order was introduced with the intention of giving the president some powers of detaining non-citizens who were suspected of engaging in terror related activities. Based on this presidential decree, the state could hold a person indefinitely, without submitting charges to him or her, and without the benefit of a legal counsel (Forsyth, 2010). A variety of legal scholars have agreed that these provisions are a direct violation of the principles of habeas corpus. In the 2004 case of Hamdi vs. Rumsfeld, the United States Supreme ruled that American citizens have a right of enjoying the principles of habeas corpus, even if they are declared as enemy combatants. Based on this fact, the court ruled that American citizens have a right of enjoying this writ, and it cannot be revoked. In the 2006 case of Hamdam vs. Rumsfeld, Salim Handan was able to petition the courts for the writ of habeas corpus. He was challenging the military commissions that were set up by President Bush, for purposes of trying the detainees who were held up at the Guantanamo Bay, saying that it was a violation of the Geneva Conventions on the treatment of enemy combatants (Harriger, 2010). Furthermore, the courts ruled against the 2006 defense appropriation act, which was stripping it the powers and capability of hearing cases that involved detained Guantanamo combatants. Section 1005 (e) of the law denoted that, no justice. Judge or court shall have the power and jurisdiction of hearing an application for the writ of habeas corpus which is brought forth by a foreigner who is detained by the department of defense in Guantanamo Bay (Garrett, 2011). However, in 2006, the Senate and the Congress passed the Military Commission Act. This bill was able to suspend the writ of habeas corpus to any foreigner, who was considered as unlawful enemy combatant, responsible for engaging in hostile acts against the United States. President Bush signed the law in the next month expressing absolute support to it. However, in Boumediene vs. Bush, the US Supreme court ruled that the military commission act was unconstitutional. Based on this fact, the court allowed the federal courts to hear petitions that came from detainees held in Guantanamo Bay, and who were tried under the act. Under the military commission act, the law allowed appeals for the writ of habeas corpus on prisoners who were categorized as enemy combatants (Forsyth, 2010). If they were not, then their detention at the Guantanamo Bay was legal. In Boumediene vs. Bush, Justice Anthony Kennedy read the opinion of the majority judges. The majority opinion was that the constitution guaranteed the writ of habeas corpus to people who are held at Guantanamo Bay, and who are viewed as enemy combatants (McDonough, 2008). Based on this fact, if the US congress wanted to suspend this right, then it must provide a meaningful opportunity to prisoners that they are held wrongly and illegally held. Furthermore, there must be a reviewing organ, which must have the capability of correcting errors, and investigating exculpating evidence, against the detainees. Based on these facts, the courts threw out the 2005 detainee treatment act, which was unable to provide a substitute for habeas corpus. Justice Souter, Ginsburg and Breyer were able to concur with this decision (Garrett, 2011). They argued that legislations put in place, ion regard to Guantanamo Bay suspected, had eliminated the concept of habeas corpus in the region. Based on this fact, the jurisdiction was under the constitution of United States; hence the detainees should be treated as per the constitution. Furthermore, the judges denoted that the application of habeas corpus in Guantanamo Bay is consistent with the historical application of such writs. However, Justice Scalia, Alito, Thomas and Chief Justice Roberts dissented against this opinion (Harriger, 2010). They argued that the detainee treatment act was able to provide sufficient protection to the prisoners, and it was a necessary alternative to the writ of habeas corpus. President Barrack Obama is also in support of the detention of foreigners and US citizens who are classified as enemy combatants. The 2011 National Defense Authorization Act is a law that gives the states security organs to detain any US citizen, who is regarded as an enemy (Garrett, 2011). This is without any indictment or trial. The people concerned are not only American citizens who have left the country, and captured in battle field, but also those who are still in United States, but are opposed to any aggressive behavior of the government, or are in support of these organizations. This law is a clear breach of the freedom of association that is contained in the American constitution. In conclusion, the applicability of the writ of habeas corpus is controversial in the United States. The country is reluctant to apply these privileges to enemy combatants, and any other person who is responsible for supporting the enemies of United States. This is even if, they are the citizens of United States. This hard-line position has been taken by the US government, following the September 11th attacks, and it is aimed at preventing terrorism in the region. References: Forsyth, C. (2010). Effective judicial review: A cornerstone of good governance. Oxford: Oxford University Press. Top of Form Bottom of Form Free Dictionary. (n.d.). Habeas Corpus. Retrieved February 15, 2015, from http://legal- dictionary.thefreedictionary.com/writ of habeas corpus Top of Form Bottom of Form Freedman, E. (2001). Habeas corpus: Rethinking the great writ of liberty. New York: New York University Press. Top of Form Bottom of Form Garrett, B. (2011). THE GREAT WRIT Justin J. Wert: Habeas Corpus in America: The Politics of Individual Rights. (Lawrence: University Press of Kansas, 2011. Pp. vii, 285.). The Review of Politics, 346-348. Top of Form Bottom of Form Harriger, K. (2010). HOW THE WRIT BECAME GREAT Paul D. Halliday: Habeas Corpus: From England to Empire. (Cambridge, MA: Belknap Press of Harvard University Press, 2010. Pp. ix, 502.). The Review of Politics, 162-164. Top of Form Bottom of Form McDonough, J. (2008). Habeas corpus. Cambridge, U.K.: Salt Publishing. Top of Form Bottom of Form Mossin, H. (2002). Habeas corpus (6a ed.). São Paulo: Editora Atlas. Top of Form Bottom of Form Turley, J. (n.d.). The Heritage Guide to The Constitution. Retrieved February 15, 2015, from http://www.heritage.org/constitution/#!/articles/1/essays/61/habeas-corpus Read More