Habeas Corpus and the War on Terrorism
By Robert Hawkins
POL201: American National Government
Instructor: Russel Riggs
March 18, 2013

The Term “Habeas Corpus” comes from the Latin term meaning "have the body". Habeas Corpus is considered to be one of the most fundamental guarantees of personal liberty. Its roots come from England and are found all throughout our history, such as the Civil War and currently the War on terrorism. The Writ of Habeas Corpus specifically refers to the right to challenge one's detention. It is also the state's ability to force someone to appear in court. By allowing an independent judge to review the basis of a person’s detention and order the detainee’s release if the grounds are unlawful, habeas corpus serves as a bulwark against arbitrary arrest, torture, and extrajudicial killings. This right, whose evolution was largely driven by historic struggles to impose limits on the power of the monarch, is today widely protected in domestic and international law. It was common in England, in the period of the conflict between Protestants and Catholics, to be held indefinitely in the Tower of London without trial. Political prisoners disappeared because they had not broken the law, but have opposed the crown's policies. When the term first came into widespread use in medieval England, a "writ of habeas corpus" was simply a subpoena. A king or local official could impose a "writ of habeas corpus" to force someone to appear and testify. But over time, it took on a more libertarian meaning. By the time England's Habeas Corpus Act came into effect in 1679, it was understood as a civil right protecting the populace from being arrested without charge. In America, the Writ of Habeas Corpus was proudly continued after freedom from England had been established and is a major part of the American legal system.

The need to know the crime for which one had been charged is the essence of American legal system. However, the framers of the Constitution did not include the Writ of Habeas Corpus in the Bill of Rights, and Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." Traditionally, this clause, delegating great authorities to the President, or Executive branch, is reserved for points at which the nation is in great peril. There are only three instances in which the executive used that ability to temporarily nullify the Writ of Habeas Corpus. The Alien and Sedition Act abolished the granting of writs of Habeas Corpus following the diplomatic and domestic perils of the threat of foreign French or British saboteurs during the French Revolution. During the Civil War, Abraham Lincoln suspended Habeas Corpus because he believed that the Constitution was not designed to be a “suicide pact”. He detained known Confederate spies indefinitely until the war was over. In the current Global War on Terror, Habeas corpus is suspended for those who are deemed to be "unlawful enemy combatants," otherwise known as terrorists. Alleged terrorist in detention camps in Guantanamo Bay, Cuba and Bagram Air force base, Afghanistan are held indefinitely. They are not granted Writs of Habeas Corpus as a result of their alleged "unlawful enemy combatant" status that the President has labeled them.

The President reserves this authority in times of national peril. However, the question of Habeas Corpus in application to the War on Terror is a question of policy. "Unlawful enemy combatant" is defined broadly enough to mean an individual that protests against the United States. Too much freedom is given to the executive branch when it comes to Habeas Corpus. It is the duty of the Congress or the Judiciary to check executive authority to keep the definition of "unlawful enemy combatant" within the scope of foreign terrorism. The Judiciary system, at anytime can say that the suspension of Habeas Corpus is unconstitutional and demand that the persons be brought before the courts. In response to the arrest of Maryland secessionist John Merryman by Union troops, Chief Justice of the Supreme Court Roger B. Taney defied Lincoln’s order and issued a writ of habeas corpus demanding that the U.S. Military bring Merryman before the Supreme Court. Lincoln and the military refused to honor the writ, Chief Justice Taney declared Lincoln's suspension of habeas corpus unconstitutional. However, the Bush administration, in November 2001, President Bush issued a military order "Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism". This was the directive that called for the detention and trial by military commissions of aliens that the President determined was dangerous. This order was controversial because it ignored or circumvented the US federal Courts and civilian law and due process. In the end, the Supreme Court found that it was unconstitutional. In response to the Supreme Court’s decision, the Military Commissions Act was drawn up with much the same purpose as the military order that started this whole chain of events. Among other things, it allows a broader range of harsh interrogation methods that are permitted on, disallows the use of the Geneva Conventions by, and denies the right of habeas corpus to those found to be unlawful enemy combatants.
Habeas Corpus is our ticket to ensure our freedoms are always there. It was a writ to ensure that the government cannot deny us or trap us in an illegal way and to give each of us a chance to a fair trial. It was a law handed down from the framers of England back to the Americans as a check of power between the executive branch and legislative. The Supreme Courts have the ultimate say in whether or not the Executive branch can suspend the writ of Habeas Corpus, however, only if the Executive branch thinks that the nation is in great peril.

Reference:
Ackerman, B. 2006. Before the Next attack: Preserving Civil Liberties in a Age Terrorism
Yale University Press. Retrieved from the Ashford Library.
Neely, M, E. Jr. 1992. Fate of Liberty: Abraham Lincoln and Civil Liberties. Oxford
University press. Retrieved from the Ashford Library.
Levin-Waldman. (2012). American national government. San Diego, CA: Bridgepoint Education
Inc.
Pfiffner, P, J. 2008. Power Play: The Bush Presidency and the Constitution. Brookings
Institution Press. Retrieved from the Ashford Library.
Polner, M & Woods, T, E. 2008 We Who Dared to Say No to War: American Antiwar Writing
1812 to Now. Basic Books. Retreved from the Ashford Library.
Smith, C. 2008. Eight O’Clock Ferry to the Windward Side: Seeking Justice in Guantanamo
Bay. Nation Books. Retrieved from the Ashford Library.

.