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Habeas Corpus and War on Terror


The right to habeas corpus is universally considered as one of the most fundamental tenets of the US criminal justice system. Specifically, its definition is recognized in the Suspension Clause of the Constitution of the United States, where it is explicitly recognized that this provision should not be suspended. Two exceptional circumstances are rebellion or invasion the public safety.

The issue of habeas corpus is considered to be of immense political and legal importance for the US communities. However, it is known to be surrounded by a lot of legal complexities and misinterpretations, most of them caused by the adoption of the Homeland Security Act and creation of Guant?namo Bay detention camp, out of the jurisdiction of the United States.

The objective of this paper is to explain the historical evolution of these instruments, to analyze the situations when the suspension of this document can be legitimately invoked, and its relationships to the protection of the US recognized civil liberties and privileges and to evaluate the role of the key stakeholders in the implementation of Habeas Corpus Provisions.

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Evolution of Habeas Corpus

The right to habeas corpus is recognized on the state and federal level in the United States of America. Nowadays, it is popularly utilized by convicted persons to challenge the legitimacy or legality of their arrests in conjunction with the Due Process Clause of the Constitution of the United States

Historically, the roots of this instrument are to be found in English common law. The first recorded usage of the law took place in the 14th-century during the reign of King Edward of England. The first codification of this document was exercised in 1679 and current interpretation of this provision is encapsulated in the Human Rights Act 1998. Moreover, the provisions of habeas corpus legal doctrine have been replicated in the European Convention on Human Rights.

Traditional English interpretation of this doctrine is more narrow than the one of the United States, providing that a detainee may not be deprived of judicial review of his/her petition under any circumstances and suspensions of the right to petition are never to be exercised. To be more specific, the concept of habeas corpus is commonly utilized by legal practitioners in the United Kingdom in the course of litigation, whereas in the United States of America this practice is rather exceptional and strongly associated with the legal practice of the Supreme Court of the United States. In fact, almost any judicial decision citing the provisions of habeas corpus becomes a landmark case.

Suspension of Habeas Corpus

Vigorous scholarly debates are waged around the question whether the suspension clause of the first article of the Constitution expressly recognizes the right to habeas corpus or it simply prevents the US Congress from taking restrictive measures. Commonly, it is recognized that the Constitution of the United States indirectly acknowledges the presence of this judicial instrument, although the number of opponents is growing, especially in the light of the recently declared war against international terrorism. Specifically, the presence of habeas corpus arms the potential terrorists and their attorneys with different legal measures to avoid arrest and interrogation.

Although the suspension issue is not explicitly regulated by the Constitution of the United States or statutory law, the classical approach to the interpretation of the US Constitution enabled to apply temporary suspensions of this doctrine. In other words, habeas corpus can be temporarily suspended by the law adopted by the Congress or by a decree issued by the President. The first suspension of the habeas corpus was exercised by Abraham Lincoln in Maryland on the eve of the Civil War. The Congress of the United States suspended the legal force of this instrument many times during the postwar period with the objective to stabilize the judicial system and prevent the abuse of habeas corpus. The reconstruction era was reported to be one of the most active in terms of temporarily suspensions, both of congressional and presidential nature. On the local level one of the most notable suspensions of habeas corpus took place in the state of Hawaii, when the governor declared martial law immediately following the Japanese attack on Pearl Harbor. In Ex parte Quiring the request of German saboteurs for writ to habeas corpus was denied because of supremacy of martial law.

Today’s main suspensions steam from the antiterrorism and effective death penalty act of 1996, adopted by the administration of Bill Clinton, and the Military Commissions Act of 2006, subsequently amended by that notorious Obama Military Commissions Act of 2009. The legal practice was substantially modified by several landmark decisions including Hamdan v. Rumsfeld and Boumediene v. Bush.

Although the legal arguments of the proponents of habeas corpus may seem to be persuasive, contemporary realities dictate that this fundamental policy should be reviewed, especially in the light of imminent terrorist threats.

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Boumediene v. Bush and its significance

The significance of this highly controversial legal decision sparked a lot of years of academic and political debates across the United States and internationally. Specifically, by a tiny minority 5:4 the Supreme Court of the United States found out that the detainees of Guant?namo Bay are nevertheless subjected to the US legal framework, and therefore the Habeas Corpus act should be applied to them. Commonly, the justices of the Supreme Court of United States converged on the opinion that enemy combatants should enjoy the right to habeas corpus irrespective of their geographical location, provided that they are detained by the United States Armed Forces or other authorized personal. The majority opinion was delivered by Justice Anthony Kennedy and supported by justices Ginsburg and Breyer, who in their concurring opinions wrote that the constitutional jurisdiction of the United States should be applicable to the United States military personal irrespective of their location or function. Therefore, the detainees of Guant?namo Bay received the right to habeas corpus submissions and respective judicial proceedings (US Supreme Court).

That dissenting opinion was drafted and argued by justices Scalia, Roberts, Thomas and Alito. Their main argument is that the provision of Habeas Corpus should be granted to the US citizens and to the civil population of the occupied countries, whereas the enemy combatants should not enjoy this right because of prospective abuses. Moreover, justices highlighted the presence of the classification problem, mentioning that the majority of the Guant?namo detainees do not meet the eligibility requirements for being considered enemy combatants.

Although the legislation has been respectively modified following this landmark case, the majority of the US population is reported to support the opinion delivered by the dissenting party. In fact, the legal provisions are always destined to regulate the realities, while nowadays the war, which is conducted, has been fundamentally modified. Terrorists are now employing sophisticated technology which makes it difficult to impose liability on them and habeas corpus is evolving into an effective mechanism of escaping liability.

Habeas Corpus and the Stakeholders

Despite the fact that the importance of habeas corpus is recognized by the key political figures of the United States, their roles and missions are considerably different.

Firstly, President of the United States ostensibly remains the advocate and the protector of all constitutional provisions, direct and consequential ones. However, in practice President of the United States is charged with the responsibility to guarantee that the efficiency of the anti-war operations and, as the commander-in-chief, is responsible for the well-being of the US troops. Therefore, the role of President is clear (Congressional Globe). In particular, he must design all the possible measures of circumventing and restricting the functionality of habeas corpus provisions. The most notable example of circumvention is the creation of Guant?namo detention center, although subsequently this practice was prevented by the Supreme Court of the United States.

The Congress of the United States can grant congressional suspension of the clauses, although in the 21st century these cases were not reported to take place. Nowadays, the role of the US legislature is limited to support or to criticize the actions of the Presidential Administration with regard to particular limitations. Practically, congressional support or ostracism depends on the congressional majority. To illustrate, George Walker Bush enjoyed full support of the Senate and the House of Representatives.

The Supreme Court of the United States is the main protagonist of minimization of habeas corpus significance. The system of checks and balances is maintained by this judicial institution, since it is authorized to change the Acts adopted by President. It is evident that nowadays the court is favoring the ubiquitous application of Habeas Corpus.

Finally, the community of the United States is split into two parts, with the majority supporting the pro-war orientation and consequently consenting to suspensions and limitations of the discussed instrument. This public reaction has been primarily triggered by the heavy casualties incurred by the United States Armed Forces and 9/11 terrorist attacks.

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