Habeas Corpus: Origins and the War on Terror

Habeas corpus is a fundamental right protected by the United States Constitution. The origins of the writ of habeas corpus, however, predate the creation of America by over five centuries, appearing first in the Magna Carta. In order to fully understand the writ of habeas corpus is it crucial to evaluate its history in both England and America, how the law has been changed and suspended in American history, how habeas corpus is relevant for the collaboration for effective justice in the current the war on terror in America, why the court case Boumediene v. Bush was important in the interpretation of habeas corpus and an analysis of varying perspectives pertaining to the application and understanding of habeas corpus. In examining all of these points it will be shown that like many other rights in the United States, the right of habeas corpus is left widely to interpretation and the current political climate.

Habeas corpus is perhaps the oldest human right in history. Contained in the 39th clause of the Magna Carta, the origins of the law reads, “no man shall be arrested or imprisoned…except by the lawful judgment of his peers or by the law of the land” (Farrell & Rohde, 2010, par 4). It is important to note here that the word “or” meant in addition to. Therefore, peers plus laws of the land were the recipe needed under habeas corpus for arrest and imprisonment. Additionally, habeas corpus was a large part of English courts by the 1600s but, unlike in the United States where habeas corpus is a protection of the rights of citizens, judges in England viewed the law as more of an extension of the king’s power over his people (Farrell & Rohde, 2010, par 5). As a result, when habeas corpus became what it is known as today in the United States, there was particular consideration from the founding fathers on making sure the right for citizens was not extrapolated to empower the government. This preference of power over liberty in England carried over into the late 1700s and into the early 1800s during the wars with France. “…Parliament passed a string of statutes that suspended habeas corpus, broadened the definitions of treason and seditious libel, and outlawed many kinds of public assembly and political association” (8). Although the United States sought to protect the rights of the individuals in their application of habeas corpus, there are incidents in history where the law was altered in favor of security or increased power of a body of government, much like the case in England.

One of the first leaders of America to note the importance of habeas corpus was founding father Thomas Jefferson during his presidency. In his inaugural address on March 4, 1801, he stated, “(the) freedom of person under the protection of the habeas corpus; and trial by juries partially selected. These principles form the bright constellation which has gone before us and guided our steps through an age of revolution and reformation” ("Habeas Corpus," n.d., para 4). It can be suspected that Jefferson is claiming that the “revolution” and “reformation” of habeas corpus have been bettered under the United States compared to its origins in England. In fact, habeas corpus was such an important consideration in the founding of America, that it is intricately entwined in the Constitution and is a principle that all other rights found in the United States come from.

In the United States, the law of habeas corpus has been suspended multiple times for varying reasons. One of the first suspensions came under President Lincoln during the civil war when a militia threat, Lincoln believed, was becoming too severe. There was also concern from Lincoln that Maryland would secede from the Union had habeas corpus not been suspended. However, it has been argued that Lincoln’s suspension aided the Confederacy in their overarching statement of the resistance of tyranny from the Union. The next suspension came under President Ulysses S. Grant during the 1870s in response to the growing threat of the Ku Klux Klan in South Carolina (5). Finally, there was also a violation of habeas corpus in World War II when Japanese Americans were ordered against their will to submit to internment camps simply because they originated from the country that attacked the United States (Coleman, 2006). The suspension under Lincoln and under Roosevelt in World War II shows that it is important to always remember the detrimental consequences to suspending any law, especially a law that is credited as the foundation for the rights of the citizens of a country. A common theme through all of these examples, however, is an underlying preference for safety over freedom. In this way, the United States echoes very closely to England in the late 1700s and early 1800s. In fact, these examples can also be applied to the present day in the United States “war on terror.”

Following the attacks on the World Trade Center on September 11, 2001, President George Bush began restricting habeas corpus for both non-citizens as well as for everyday American citizens. The most dangerous part about this action by Bush as he gave himself the power to decide which citizens should be stripped of their right of habeas corpus and at what time. Under the Antiterrorism and Effective Death Penalty Act, passed shortly after the Oklahoma City bombing, there were two big changes to habeas corpus and its application. First, the act allowed for imprisonment of up to a year without trial and second, the act weakened the power of the federal courts to overturn decisions made by state courts ("Habeas Corpus," n.d., pars. 7-9). Essentially, this act weakened the balance of power in subsequent courts when looking at an event involving habeas corpus. The first change of imprisonment for up to a year without trial is of particular concern in present-day America, especially when combined with the president’s newfound power of stripping rights.

In 2004, this dangerous mix came to light at the Republican National Convention, where American citizens were detained for protest. In fact, because of the Antiterrorism and Effective Death Penalty Act, there are now specific camps for holding American citizens should the government, namely the president, feel such a holding is necessary for the safety of the country (10). The language in the laws protecting this new power of the president is so broad that almost anything, given a lose enough interpretation, could be construed as necessary for the safety of the country. Again, it is easy to see that the United States is mimicking England’s path in regard to habeas corpus in deciding that “safety” is more important than liberty.

The actions taken by America in regards to enemies and illegals have been debated on different sides on whether these individuals should have the right to habeas corpus. One of the first major changes in the application of habeas corpus for these individuals was in 2001 when the Presidential Military Order was created. “This gave the president the power to detain as “enemy combatants” non-citizens suspected of having a connection to terrorists or terrorism. These individuals could then be held without charge indefinitely, without a court hearing and without access to a lawyer” (13). Essentially, the power that President Bush succeeded in creating for his position, destroyed the overall principle of habeas corpus (protection from unlawful imprisonment) while simultaneously shifting the balance of power between the legislative and judicial branches heavily to the executive branch. As a result, the Supreme Court tried to make it clear in their rulings on habeas corpus that these rights could not be violated, including for non-citizens. What followed was a back and forth between President Bush, with congress against the Supreme Court.

Perhaps the most disturbing act passed under Bush was the Military Commissions Act of 2006 which, “…eliminated habeas corpus by allowing non-citizen enemy combatants to be held indefinitely in a military prison without access to a lawyer” (17). However, there are other experts in the field of national security who believe these provisions are appropriate in the context of enemy combatants.

In regards to the differential treatment of American citizens versus enemy combatants, there are arguments that habeas corpus, if extended to non-citizens, would actually thwart America’s well-being. James Carafano, Ph.D., an expert on foreign policy and national security issues, makes the argument, “granting unwarranted legal rights puts soldiers and civilians at risk by rewarding treachery with privilege” (Carafano, 2007, par 4). This is the foundation of Carafano’s argument and it can definitely be seen that there are expectations of conduct attached to rights received by any individual, citizen or non-citizen. Although many people in the opposition would claim that America needs to put rights above any sense of safety, this line of thinking could be out of balance. Carafano goes on to say, “Soldiers should not be required to provide to unlawful combatants, in the same manner and to the same extent as would be expected of a civil court, the full array of civil protections afforded to U.S. citizens by the Constitution…” (5). Although that point is solid, it appears that under Bush there hasn’t been a difference in the application of habeas corpus, but rather an elimination of the law entirely. In addition to the opinions and actions of the Bush administration, the case of Boumediene v. Bush shows how the Supreme Court viewed this issue of the application of habeas corpus.

Boumediene v. Bush was a suit that was filed in civilian court on behalf of Lakhdar Boumediene who was being held by America at Guantanamo Bay. It is important to note that Guantanamo Bay, because it is situated in Cuba, does not give the United States absolute control, only jurisdictional control. The Supreme Court had to make the decision if prisoners in Guantanamo Bay had a right to the protection of habeas corpus. Justice Kennedy, the swing vote in the 5-4 decision maintained that this right should, in fact, be protected for those prisoners. “This label ultimately stated that the aliens detained at the base were enemy combatants and were entitled to the writ of habeas corpus” ("Boumediene V. Bush," n.d., para 4). For the opposition, Justice Roberts, stated plainly, “It is grossly premature to pronounce on the detainees’ right to habeas…” ("Boumediene v. Bush," 2007, par 9). Obviously, this ruling created a strongly divided opposition voice to the Bush administration in their agenda to eliminate the writ of habeas corpus for enemy combatants. Given the close vote, it is important to also explore the perspectives of other leaders in the government to see if there is agreement for the extension, elimination or somewhere in-between application for the writ of habeas corpus for enemy combatants.

In evaluating the importance, history, and application of habeas corpus it is easy to see how variable the law is. The application of this law largely depends on the political climate of the time, the situation of national security and its historical interpretations. Like all other laws pertaining to the rights of citizens (and non-citizens) there is always a struggle between the balance of safety versus liberty. The usage of habeas corpus, as well as the limitations of it, has shown this struggle in English history as well as in the American past and in the present day with the continual war on terror. While the government and the people remain divided as to how habeas corpus should be applied and interpreted, it is no doubt due to the ever-increasing difficulty of the balance of rights and security for citizens and non-citizens alike.

References

Boumediene v. Bush. (2007, December 05). BOUMEDIENE v. BUSH. Retrieved from http://www.law.cornell.edu/supct/html/06-1195.ZS.html

Boumediene V. Bush. (n.d.). Laws.com. Retrieved from http://cases.laws.com/

Carafano, J. J. (2007, July 5). The war on terrorism: Habeas Corpus on and off the battlefield. The Heritage Foundation. Retrieved from http://www.heritage.org/

Coleman, S. (2006, July 13). President Bush, the US Supreme Court and the 'war on terror' Irish Times. Retrieved from http://www.irishtimes.com/

Farrell, S., & Rohde, S. F. (2010, July 20). The origins of Habeas Corpus. Truthout. Retrieved from www.truth-out.org

Habeas Corpus. (n.d.). The Rutherford Institute. Retrieved from https://www.rutherford.org/constitutional_corner/habeas_corpus/

Writ of Habeas Corpus. (n.d.). Habeas Corpus. Retrieved from http://www.stanford.edu/group/psylawseminar/Habeas Corpus.htm