Civil Liberties, Habeas Corpus, and the War on Terror Persuasive
Civil Liberties, Habeas Corpus, and the War on Terror Persuasive

Civil Liberties, Habeas Corpus, and the War on Terror Persuasive

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  • Pages: 5 (2295 words)
  • Published: November 13, 2018
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Restricting the right to habeas corpus for the purpose of combating terrorism has been a subject of controversy in different spheres of the American society. A perusal of academic literature, popular media, and public opinion indicates that citizens of the United States including different branches of the government are divided on this important public issue. Habeas corpus is a fundamental legal system that safeguards the civil liberties of citizens against any form of arbitrary detention by the executive branch of the government. Here, it is important to note that the citizens of the United States have the right to petition a state or federal court for the purpose of requesting the court to evaluate the basis of an individual’s detention. However, historical evidence shows that this fundamental right of the citizens protected by Article I, Section 9 of the United States Constitution has been suspended on several occasions. Furthermore, since the September 11, 2001 terrorist attacks, the United States has witnessed the detention of hundreds of people without trial in the Guantanamo Bay in Cuba and the Bagram Airfield in Afghanistan (Farrell, 2010; Aradau, 2008; Walzer, 2007).

The issues surrounding

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the recent suspensions of the habeas corpus and arbitrary detention of “enemy combatants” in Guantanamo and Bagram are complex, and they seem to have wide ranging implications in relation to territorial jurisdiction, separation of powers, and the rights of individuals. Furthermore, these issues have implications in the United States domestic statutory law, case law, constitutional law, and the international human rights law. This paper highlights the general meaning of habeas corpus as provided in the U.S. Constitution, its historical evolution and relevance to the current U.S. situation with regards to the war on terror, and the U.S. Supreme Court’s interpretation of the right of habeas corpus in relation to “enemy combatants”. It then examines different perspectives on this controversial topic with reference to opinions raised by the Supreme Court justices, government leaders, and commentators in the academic and popular media. In conclusion, based on these assessments, this paper notes that the right to habeas corpus is fundamental in guaranteeing the basic rights individual citizens in different countries, but it can be suspended during emergency situations for the purpose of securing national security.

Habeas Corpus and Civil Liberties

According to the United States Constitution, habeas corpus refers to the right to seek judicial determination of the legal basis of a person’s detention by petitioning a state or federal court. Therefore, habeas corpus is one of the fundamental guarantees of the civil liberties of American citizens. Here, it is important to note that the right to habeas corpus allows an independent judge to re-examine the legality of an individual’s detention; hence, the judge can order the release of persons who are detained unlawfully. Most importantly, the right to habeas corpus safeguards the citizens against arbitrary arrests, torture, and extrajudicial killings, whic

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can be advanced by various government machineries (Farrell, 2010).

The Historical Evolution of Habeas Corpus

The right to habeas corpus originated in medieval England, and it is influenced by the English (Anglo-Saxon) common law. It is a fundamental remedy at law in American systems of jurisprudence and other countries deriving their laws from the English common law. In the history of England, habeas corpus precedes the Magna Carta (1215), but its precise origin is unknown. It is estimated that the principle of habeas corpus appeared in the middle ages whereby it was employed to ensure that all persons held in custody appeared in a court of law. At first, the Writ of Habeas Corpus was a preserve of the King and his courts, but later, restrained persons or their representatives were capable of initiating this writ to compel those holding them to provide the legal basis for their detention (Robertson, n.d.). Subsequently, the Writ of Habeas Corpus was codified and enacted by parliament in 1679 as the Habeas Corpus Act of the English common law. This allowed courts to issue Writs of Habeas Corpus in several occasions, and those judges who failed to do so were penalized accordingly. Therefore, habeas corpus was established as the primary means of guaranteeing individual liberty against the arbitrary exercise of power by the state.

In the same way, the Writ of Habeas Corpus in America originated in the English common law and practice, and it came into practice during the American Revolutionary War. Therefore, courts in all the British colonies in New England recognized the Writ of Habeas Corus as part of the fundamental protections and rights of each citizen. Subsequently, the drafters of the United States Constitution incorporated the Writ of Habeas Corpus into Article I, Section 9 of the Constitution, which clearly states that the right to habeas corpus should not be suspended, unless there are enough reasons to do so, particularly during the time of a rebellion or invasion of public safety. This indicates that the right to habeas corpus is fundamental to the citizens of the United States considering that it was included in the Constitution much earlier compared to other individual rights provided in the Bill of Rights (Robertson, n.d.).

Suspension of Habeas Corpus in the United States

On several occasions, the Writ of Habeas Corpus has been suspended in the history of the United States, particularly during the period of war. For instance, at the beginning of the American Civil War in 1861, President Lincoln gave orders for the right to habeas corpus to be suspended, but the Supreme Court challenged the constitutionality of the president’s order by stating that the power to suspend laws was vested in Congress. However, in 1863, Congress granted the president express authority to suspend the right to habeas corpus. As a result, the right to habeas corpus was suspended in Hawaii following the United States entry into World War II (Farrell, 2010). In 1944, before the executive could restore the right to habeas corpus, an individual detainee petitioned the United States District Court of Hawaii to review the basis of his detention. As a result,

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