HABEAS CORPUS

TERESA WATSON

AMERICAN NATIONAL HISTORY

PROFESSOR BRENT SCHINDLER

FEBUARY 4, 2013

Habeas Corpus in its most familiar form has played an important role in “Anglo American history as a safe guard of individual liberty. It is defined as being a writ directed by a judge to some person who is detaining another, commanding him to bring the body of the person in his custody at a specified time and a specified place for a specified purpose. In contemporary practice, the writ is most commonly used to challenge the legality of criminal convictions and sentence, though it is also used to challenge the legality of custody in other settings, including immigration, mental health, and military contexts. The availability of habeas relief was that the center of the struggle between Crown and Parliament in the 17th century, when parliament objected to lawless detentions from which no judicial remedies was forth coming. Infamous deprivations of liberty led to extensive criticism and protest, as English citizens were often held for significant periods without trial and without recourse. Ultimately, parliament prevailed with the enactment of the Habeas Corpus act of 1979, which specifically authorized habeas corpus required habeas relief under certain circumstances with substantial penalties for non compliance (Encyclopedia.com) The English protection of the writ of habeas corpus was quite influential during the framing period of the United States, with both states and federal government adopting statutory and constitution guarantees of the writ. The federal constitutional guarantee prohibiting the suspension of habeas corpus is one of only two federal constitutional provisions that explicitly refers to and protects a particular remedy The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. This clause is the only place in the constitution in which the Great Writ is mentioned, a strange fact in the context of the role the right has come to play in the Supreme Court efforts to constitutionalism federal and state criminal procedures. Only the federal government and not the state are limited by the clause. The issue has caused critical attention is the authority in which the clause places the power of determined weather the circumstances warranted suspension of the privilege of the writ. At the convention, the first proposal of the suspending authority expressing vested in the legislature the suspending power but the authority of this proposal did not retain this language when the matter was taken up the present language then being adopted. Nevertheless, congress power to suspend has assumed in early commentary and stated by the court. Commander-in-Chief clause, states that the President shall be commander in chief of the Army and Navy of the United States, and of the Militia of several states, when called into the actual service of the U.S. To what extent the President has the authority to use the military absent of congressional declaration of war have proven to be sources of conflict and debate throughout American history. Some may believe that the Commander in Chief clause confers expansive powers on the President, but others may argue that if even if that is the case, the constitution doesn’t define precisely the extent of the powers. To construe the clause narrowly, asserting that the Framers gave the President the title to not to provide additional power outside of a congressional authorizations or declaration of war. In 2004 Rasul v. Bush became the first case in which the Supreme Court directly discussed Bush Administration Guantanamo detention policies. 542.U.S.466. The court in this case held that 28 USC & 241 permits federal district courts to hear habeas corpus petitions by aliens held within territory over which the U.S. exercise “plenary and exclusive jurisdiction.” This holding also included Guantanamo detainees. The court then instructed the district courts to hear the petitions. Bush Administration responded to Rasul by permitting detainees to bring their petitions before Military tribunals, the Supreme Court again addressed the matter in 2006 when they decided Hamden V. Rusfield 548.U.S.557. The court in Hamden held that the President lacks constitutional authority under the Commander in Chief Clause to try detainees in military tribunal. The tribunals also violated the uniform code of military justice and the Geneva Conventions. Furthermore, the court rebuked the government arguments that they AUMF expanded Presidential authority. The Supreme Court plays an important role/part in protecting civil liberties. The court is the institution that can overturn acts of the elected branches if it believes that these acts violates the right of individuals. The U.S. Supreme Court has ruled that the federal judiciary has the power to issue writs of habeas corpus only when Congress gives it such power. Article I, section 9, of the Constitution, however says, “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” The phrase “shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.
The federal judiciary is the branch of government that holds trial and decides cases under the nation’s laws. The power of the federal judiciary appears in Article III of the U.S. Constitution. America adopted the constitution in 1788. Before then the country did not have a separate judiciary. Instead, a body called Congress exercised all the powers of the nation’s government.
The thirteen American colonies first delegate the Congress in 1774. Beginning in 1781Congress functions under a document called the Article of confederation. The Articles gave Congress the power to make and enforce the nation’s laws. It also gave Congress the power to establish courts to resolve particular kinds of disputes. There was a not general judicial system to hear and decide cases under the nation’s laws.
In times of emergency, debates about the proper way to balance civil liberties and national security naturally come to the forefront of political discourse simply because they conflict. After all, they were placed in the US Constitution so that the government cannot abuse its power and unjustifiably interfere in the lives of its citizens. By contrast, pragmatic thinkers argue that national security should trump civil liberties since the primary objective of the government is to ensure rights of its citizens, especially in times of emergency.
Everyone has the right to self preservation as well as the right to punish all who violate the law of nature. To avoid the inconvenience of the state of nature, the purpose of providing security is for the mutual preservation of their lives, liberties, and property. According to the foremost philosopher of human rights, both liberty and security are essential parties of the creation of the state. There are times when the state must exercise powers that constrain civil liberties, in order to protect the people in times of emergencies. The right to suspend habeas corpus falls in the hand of the Executive. It prevents the Executive from violating the right of the majority and believed the revolution is not only a right, but an obligation in some circumstances such as when the state infringes too much upon civil liberties.
Never the less, historically, in time of emergency the scale has of ten tipped toward national security at the cost of violating of civil liberties. For example, the 1798 Alien and Sedition Act, censorship of newspapers during the First World War, the internment of Japanese citizens during WWII, the opening of mail destined to the USSR during the cold war, and the Patriot Act of 9/11, just to name a few. In Swaying in the Balance, it offers one reason why such infringements occur, namely, more often than not, they are directed at minorities who use their freedom of speech to articulate undemocratic or unpatriotic points of view. In which case, the majority is likely to support the efforts of the government because because such restrictions do not directly affect them. Another example would be, in 2001 Hamdi, an American citizen, was arrested by the U.S. Military in Afghanistan. He was accused of fighting for the Taliban against the U.S., declared an enemy combatant, and transferred to a military prison in Virginia, even though Hamdi’s father had told officials he was there doing relief work. He was held without access to an attorney, denied his petition to habeas corpus, and there was no public outcry. The Supreme Court overruled the Executive in Hamdi v Rumsfield, ruling that the fifth Amendment due proves guarantees give a citizen held in the U.S. as an enemy combatant right to contest that detention before a neutral decision-maker.
In conclusion during such times, the Executive suspends the normal functions of government and utilizes the status of the emergency as a rationale for suspending civil liberties. Also in the past, such declarations usually occurred during a time of civil disorder or following a declaration of war. Therefore, given the Supreme court consistently overruled the Executive such as cases like Hamdi, it is incumbent on the government to find a way to balance civil liberties and national security when it comes to habeas corpus.

Reference

Levin-Waldman, O.M.(2012) American Government. San Diego CA; Bridgpoint Education, Inc www. Encyclopedia.com, Social Science and the law www.lawschool.cornelledu 2011. habeas corpus. Columbia Electronic Encyclopedia 6th ed. 1. Retrieved from Academic Search Premier (EBSCOhost) database in the Ashford online Library