Habeas Corpus and the War on Terror
POL 201 American National Government

The recent War on Terror has caused quite a stir. Many patriotic Americans are now on guard even though the main character in the War on Terror, Osama Bin Laden, has been caught and executed. Many other “terrorists” have been arrested and detained at a prison at Guantanamo Bay in Cuba. This raises the question of whether they are being detained legally or not. One issue is the concept of habeus corpus. This essay will briefly outline the war on terror and demonstrate the concept of habeus corpus and what it means for detainees at Guantanamo Bay. The War on Terror may have begun with the bombings of two US embassies in East Africa in the countries of Kenya and Tanzania in 1998. At the time, it was uncertain who caused the attack or why it happened. “Two bombs with a single message: don't forget the world's superpower still has enemies, secret, violent and determined. America is ever a target, its embassies and installations abroad inviting symbols of its power See, say the bombers, despite your enormous wealth and strength, we can still inflict a great hurt” (McGreary, 1998). This message suggested that there was more terror on the horizon. The author remembers this well as he went to Kenya in 1998 and returned from his trip two days before the US Embassy was bombed there. Many Americans may have forgotten about these attacks when, three years later, the United States was attacked on its own soil. The Al Qaeda terrorist organization, whose leader was Osama Bin Laden, hijacked four airplanes on September 11, 2001. Two of those airplanes were flown into the Twin Towers in New York City, NY. One other airplane was flown into the Pentagon in Washington, DC. The other hijacked airplane was intended to fly into the Capitol Building in Washington DC. This was Flight 93, United Airlines. “By the time United Flight 93 was in smoldering pieces in a field outside the Somerset County village of Shanksville, the F-16 was 14 minutes from the range at which it could have brought down the 757 with heat-seeking missiles” (Roddy, 2001). Many Americans can remember exactly where they were when the attacks happened. This was the first official attack on United States soil in history. This is when the War on Terror truly began. Many of Al Qaeda’s leaders have been captured and detained in a prison which is on land leased by the United States on Guantanamo Bay in Cuba. The concept of the writ of Habeas Corpus has been raised because of this. “A writ of habeas corpus is used to bring a prisoner or other detainee (e.g. institutionalized mental patient) before the court to determine if the person's imprisonment or detention is lawful” (Cornell University Law School, 2010). There were claims that because the prisoners were not detained on American soil that the George W. Bush administration thought that they were being detained outside of American law. That may or may not be true, but the question was still raised as to whether the prisoners were being detained legally. The roots of Habeas Corpus in America date back to the Civil War. “Lincoln ignored a judicial opinion. John Merryman, a pro-Confederate lieutenant, was cutting telegraph wires and blowing up rail lines. Lincoln had Merryman arrested. Merryman requested a writ of habeas corpus demanding to know why he was imprisoned. A federal judge issued a writ of habeas corpus but the messenger was intercepted” (Levin-Waldman, 2012). This is just one example of the way the writ of habeas corpus has been used in the United States. The most recent bout of the concept of habeas corpus happened with the prisoners at Guantanamo Bay in Cuba. The administration of President George Bush thought that because Gitmo (the prison) is not on US soil that the prisoners would fall outside of the United States law and jurisdiction. In the Supreme Court case of Boumediene v Bush, the court found that there was a violation of the suspension clause of habeas corpus in the US Constitution. “The Suspension Clause reads: “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 (Neuman, 2010). This was a high profile case that stated that those being detained at Guantanamo Bay were being mistreated. It is the understanding of the author that before Boumediene v Bush the US Supreme Court had never before found a violation of the suspension clause of habeas corpus.
“The government’s view is that the attacks of September 11 were an act of war and not just a crime. This view is based on a congressional resolution of September 18, 2001, the Authorization for Use of Military Force, which grants special powers to the executive branch. It stipulates “that the President is authorized to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001” (Paye, 2007).
The above quote demonstrates the view of the Bush administration on enemy combatants. It shows that the Bush administration spared no effort in capturing and prosecuting those who may have been involved in the September 11, 2001 terrorist attacks on American soil. Osama Bin Laden was declared an enemy combatant and at the top of the list. Many other members of Al Qaeda were on the list of enemy combatants as well. Many were caught and sent to the prison at Guantanamo Bay.
In 2007, the United States Supreme Court heard the case of Boumediene v Bush. This case was filed because the detainees at Guantanamo Bay wanted to be granted habeas corpus via the suspension clause in the US Constitution. “In an opinion by Justice Kennedy that was joined by Justices Breyer, Ginsburg, Souter, and Stevens, the Court reversed the D.C. Circuit and held that petitioners had a constitutional right to habeas that was withdrawn by the MCA in violation of the Constitution’s Suspension Clause withdrawn by the MCA in violation of the Constitution’s Suspension Clause” (Garcia, 2008). The decision was 5-4 in favor of the detainees. These five United States Supreme Court justices, although very patriotic, felt they needed to uphold the concept of habeas corpus as described in the United States Constitution. The President of the United States is the commander-in-chief of the armed forces of the United States. The President can declare war with the approval of Congress. President Bush may not have considered the writ of habeas corpus when declaring the War on Terror. Many Americans feel that the declaration of the War on Terror was right in some aspects and wrong in others. President Bush decided to not only send troops in Afghanistan to combat Al Qaeda but also into Iraq and after Saddam Hussein. Sending troops into Iraq was not a popular decision with Americans. Many criticized this citing that President Bush was trying to finish what his father began when he was President of the United States. Whether right or wrong, the War on Terror has eliminated two very formidable enemies in Saddam Hussein and Osama Bin Laden. The role of Congress in the suspension of habeas corpus is that of a proxy. The US Congress may use the suspension clause solely or the Congress may be consulted by the President of the United States. This has happened once when President Lincoln used habeas corpus and was met with much opposition by the people. President Lincoln decided to consult with Congress who sided with him and upheld his decision. It is the duty of the United States Supreme Court to uphold the Constitution of the United States. This sometimes becomes a daunting task. The United States Supreme Court has nine justices for a reason. When all other courts in the United States have been exhausted and the Supreme Court is the only one left, there is always a definitive decision made. The majority always rules. In the case of Boumediene v Bush, this concept is seen clearly. The decision to allow habeas corpus for the detainees was 5-4. If there were another justice, there may not have been such a definitive decision because it may have been split down the middle. Some justices on the Supreme Court view controversial cases differently, but the idea is always to uphold the United States Constitution. I am very torn on the subject of the War on Terror and the prisoners at Guantanamo Bay in Cuba. I do not believe that the detainees should be treated unfairly as prisoners. Prisoners in the United States are not treated fairly either. I have heard many horror stories about the treatment of the prisoners at Guantanamo Bay. Though they are a threat to the national security of the United States, I do not believe they should be beaten. They should be detained so they cannot cause any further harm to American citizens, but not beaten because they have done something wrong. The writ of Habeas Corpus has caused controversy to all involved. The War on Terror has done much of the same. The United States Supreme Court upheld the writ of Habeas Corpus in the case of Boumediene v Bush. Was this the right decision? Even if it was not, the highest court in the land made the ruling and it therefore cannot be overturned. The civil liberties of the detainees have been tarnished and habeas corpus was granted because the United Constitution had to be upheld. References
Garcia, M.J., 2008, CRS Report For Congress, Boumediene v Bush: Guantanamo Detainees’ Right to Habeas Corpus, Retrieved from: http://www.fas.org/sgp/crs/natsec/RL34536.pdf
Levin-Waldman, 2012, American National Government, San Diego, CA, Bridgepoint Education Inc., Retrieved from: https://content.ashford.edu/books/AUPOL201.12.1/sections/sec5.7?search=habeas%20corpus#w62111
n.a., Cornell University Law School, 2010, Habeas Corpus, Retrieved from: http://www.law.cornell.edu/wex/habeas_corpus
Neuman, 2010, Columbia Law Review, The Habeas Corpus Suspension Clause After Boumediene v Bush, Retrieved from: http://web.ebscohost.com/ehost/pdfviewer/pdfviewer?sid=6eb90749-6179-462a-9bde-dd7c06a05d44%40sessionmgr111&vid=4&hid=108
McGreary, J., MacLeod, S., Mutiso, O., Waller, D., 1998, Terror in Africa, Time International (Canada Edition), Volume 152, Issue 7, Retrieved from: http://web.ebscohost.com/ehost/detail?vid=3&hid=107&sid=57b8087c-17df-42c8-b0ff-97253519a01b%40sessionmgr114&bdata=JkF1dGhUeXBlPWlwLGNwaWQmY3VzdGlkPXM4ODU2ODk3JnNpdGU9ZWhvc3QtbGl2ZQ%3d%3d#db=bsh&AN=1002437
Payne, J.C., 2007, Monthly Review, Enemy Combatant or Enemy of the Government, Retrieved from: http://monthlyreview.org/2007/09/01/enemy-combatant-or-enemy-of-the-government
Roddy, D., 2001, PG News, Flight 93: Forty Lives, One Destiny, Retrieved from: http://old.post-gazette.com/headlines/20011028flt93mainstoryp7.asp