In this particular thesis, I will be discussing about Habeas Corpus with relation to war against terror.

Habeas Corpus with relation to war against terror

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Introduction

In this particular thesis, I will be discussing about Habeas Corpus with relation to war against terror. The overall meaning of the word Habeas Corpus, its evolution, history of suspension of Habeas Corpus in the United States Of America, The importance of Habeas Corpus in the fight against terror in the contemporary U.S., legal interpretation on the rights of Habeas Corpus by the Supreme courts of the U.S., on people who have been named as “enemy combatants” or “illegal combatants“, and my personal view of this topic with respect to views of leaders in various arms of the government, the supreme court of the U.S., comments aired by people in both the academic circles and even other leading media firms.

In the constitution of the U.S. Habeas Corpus means the right of a person to go to court and oppose the legality of detention(Wynalda, 200). The word Habeas Corpus is derived from a Latin word meaning “you have the body”. Habeas Corpus is one of the oldest rights of a human being under the law of Angelo-Saxon. In 1215 it was practiced by the British (Wynalda, 100)

In the U.S constitution, under section 9, Habeas Corpus cannot be suspended unless cases where the safety of the public may be at risk, or incase of a rebellion. Even under these circumstances the person under detention still has the right for a hearing by the judiciary to determine if there is any legal aspect to warrant their detention. Some people with legal experience calls it the “great writ of liberty” as it is the only place where the prisoner is given justice as they always go before an impartial judge, who is not biased and can determine if the prisoner is being held illegally.

Evolution

On the historical evolution of the American and English tradition, Habeas Corpus refers to the law that states that a prisoner cannot be detained without a legal reason. The request of a Habeas Corpus is usually delivered to the person in charge of the prisoner like the police, sheriff, or the prison warden. Another evolution in suspension of Habeas Corpus is, evolution of the language which now became that the president “is” from “shall be” allowed to suspend the Habeas Corpus in 1863. Military detention as was once being used by Lincoln even to detain law abiding citizens also came to an end. The sections that followed later changed the whole suspension act.

In the United States history, the Habeas Corpus has been suspended in cases that were viewed by the president of the time as threatening to the public. Even though most of the time the suspension of Habeas Corpus has been overruled by the Supreme Court.

Incident where suspension of Habeas Corpus has been implemented

On the seventieth of April 1861, Virginia decided to secede from the formed union, this affected transportation, over dry land as the troops and even their supplies had to go through Maryland whose loyalty to the Union was not guaranteed, the other alternative was the use of railway, but there was a setback the railway line ran through Baltimore whose residents were not in support of the Union.

The President-elect of the time Lincoln had to be sneaked through Baltimore, an army regiment was also attacked at Baltimore by confederate sympathizers’ .Days later on April 27th Lincoln gave an order suspending Habeas Corpus within or near any military base and route all the way from Philadelphia to Washington. In this case, the president under section 9 issued the order as there was rebellion (Lind, 230)

On the 25th of May, John Merryman was arrested by troops at Cockeysville, he was charged for the offence of being the leader of the Confederate organization. Later on May 28th he was released after his lawyer petitioned the Chief Justice who ruled that there was no legal basis that the president could issue such an order, as it is only the congress that could issue such an order (McGinty 220)

On the 3rd of March 1863, Lincoln was given the powers to suspend Habeas corpus, by the congress, under section one which stated that the President has the rights to suspend the Habeas corpus if in his /her opinion the safety of the public is compromised (Wynalda, 150). Under section two, the list of names of all the prisoners being detained by the government had to be provided by the secretary of state. The list did not contain any names of the prisoners of war (Wynalda, 180).

The incident that took place in Baltimore is almost similar to what happened in Afghanistan, where troops were being attacked by Al-Qaida sympathizers, who in actual sense qualified to be called illegal combatants (Chapel Hill,210) Just like Lincoln, Bush felt that the sympathizers were a threat to the safety of the citizens of U.S. Earlier the Al-Qaida had threatened the country by attacking the country and causing death of some of the Citizens, so by invading Afghanistan to fight the terror group, the president did what to him was right as the safety of the public was at threat thus giving him all the reasons to suspend the Habeas Corpus. Just like Lincoln, Bush also tried to detain and have them tried by the military (Wynalda, 220).

In the U.S every citizen has the right to assembly, vote, and work without any discrimination. The citizens also have the right of being protected by the government from external attacks, with that in mind Habeas Corpus was necessary as the life and security of the citizens was at risk.

Supreme Court interpretation

The supreme court of the U.S. in delivering the verdict on the Guantanamo bay prisoners’ right to Habeas Corpus, in regard to them being illegal or enemy combatants, ruled that the Habeas Corpus is one of the pillars of the constitution of the U.S. Justice Anthony expanded on it by saying the rules and constitution are meant to even make it through tough times( Freedman,250) The president of ABA, who contributed a large chunk of opinion, wrote the ruling had restored the credibility of the U.S globally.

In giving the ruling the judges considered, the condition, and citizenship of the detainee, and the process that was used to arrive at the decision. The place where the arrest, and detention happened. The impediments in deciding the prisoner’s right to Habeas. The detainees did not have access to a lawyer during their appearances at the combatant review commission. The country was not facing any rebellion or invasion to warrant the suspension of Habeas Corpus.

Justice Kennedy also took into consideration that the detainees were opposing the fact that they were enemy combatants. The detainees further claimed that they were not protected enough while contesting their status. The fact that. The Prisoners were being held captive, in another sovereign country (Stephens, 200)

Role of the President

When President Bush took office, just like many presidents before him, he took an oath to adhere to the constitution, of which he should be the custodian. Unfortunately the president did not do as he swore, to protect, and preserve the constitution. Instead he wanted to go round the constitution illegally to suspend the Habeas Corpus of the detained persons at Guantanamo Bay (Habeas, 130) As the President he should have consulted widely before making such a big decision.

Role of the Congress

The congress should be the decision makers, it is in place to assist the president make crucial decisions, but in this instant the congress failed to lead the president towards the right direction. There congress should have followed the right procedure in helping the president implement the suspension of Habeas Corpus. The suspension of Habeas Corpus should be used sparingly and by following the right procedure.

Role of the Supreme Court

The supreme court of the U.S gives the citizens the right to fair judgment, the right to assembly, and protest in a peaceful manner, it also covers the right to better security against threats either from within the country, or from outside the country. A person cannot be forced into servitude.

Section 201 of the U,S enacted in 1964, gives all the citizens equal status, access to better health care without discrimination on either sex, age , color, or religion. In this instant the rights protect the citizens from discrimination from the government or any other private sector.

Conclusion

Just like all governments the U.S is responsible for the safety of its citizens, and can go to extreme ends to see that they achieve that goal. The threat can come from its own citizens or from citizens from other countries. As most of the countries worldwide, in the U.S a person is innocent until proved guilty and cannot be victimized. This at times infringe on the country security as a person who is deemed a security threat is protected by law and cannot be detained without sufficient evidence, in the process a person who is indeed a security threat can be released further aggravating the security situation. With the growing threat of terror attacks most countries like the U.S are left with determining who is actually an illegal combatant, or an enemy combatant so as to determine when a suspension of Habeas Corpus can be implemented in the fight against terror.

References

Wynalda, S. A. (2010). 366 days in Abraham Lincoln’s presidency: the private, political, and military decisions of America’s greatest president. New York: Skyhorse Pub.

Stephens, L. (2000). Resolutions passed by the General Assembly of Georgia, on the 19th day of March, 1864 declaring the late act of Congress for the suspension of the Writ of Habeas Corpus unconstitutional: also, resolutions, passed on the same day, setting forth the princi (Electronic ed.). Chapel Hill, N.C.: Academic Affairs Library, University of North Carolina at Chapel Hill.

Message of His Excellency Joseph E. Brown, to the extra session of the legislature convened March 10th, 1864, upon the Currency Act; secret sessions of Congress; the late Conscription Act; the unconstitionality of the act suspending the privilege of the w (Electronic ed.). (2000). Chapel Hill, N.C.: Academic Affairs Library, University of North Carolina at Chapel Hill.

McGinty, B. (2011). The body of John Merryman: Abraham Lincoln and the suspension of habeas corpus. Cambridge, Mass.: Harvard University Pres

Lind, D. W. (2012). Lincoln’s suspension of habeas corpus: the pamphlet literature and Congressional debate. Buffalo, NY: William S. Hein.

Habeas corpus. (2009). Mosman: IMinds.

Freedman, E. M. (2001). Habeas corpus: rethinking the great writ of liberty. New York: New York University Press.