Writ of Habeas Corpus
Jose A. Gonzalez
POL 201
Antonio Quirante
September 24, 2012

Writ of Habeas Corpus
Habeas Corpus demands a court to a jailer to produce the prisoner and announce the charges (Levin-Waldman, 2012). Habeas Corpus is an ancient common law that applies to all Americans and anybody in the United States at the time of their arrest. It is a legal procedure that requires a person to be brought in front after the have been arrested/ taken into custody. This is done so that the government to show cause to why the liberty of that person is being taken away and to let the person know what they are being charged with. Habeas Corpus is fundamental to American and all other English common law derivative systems of jurisprudence. It is the ultimate lawful and peaceable remedy for adjudicating the providence of liberty’s restraint (http://www.slate.com).
History of Habeas Corpus
The history of Habeas Corpus is an ancient law that has been used since the middle ages. It appears to be predominately of Anglo-Saxon common law origin but the exact origins are not really known. Even though the origin of Habeas Corpus is unknown it has been used in Europe for centuries. Its principle that has been used since the middle ages by various writs (http://www.slate.com). Habeas Corpus has evolved and changed a bit over the years, but it has basically remained the same. Habeas Corpus states that a person who has been arrested or in custody be brought before a court. Habeas Corpus has been used in the United States since the beginning of the American Revolutionary War. The Writ of Habeas Corpus was established by the British and was generally regarded as part of the fundamental protections guaranteed by law to each citizen (http://www.slate.com).
Article I, Section 9 of the US Constitution guarantees the availability of the writ of habeas corpus (http://search.proquest.com). Habeas corpus serves as a tool or legal defense by people that are detained by the government. Habeas Corpus has also been used by detained suspected terrorist/ enemy combatants to challenge the government as to the legality of their detention. Since the beginning of the War on Terror hundreds of suspected terrorist/ enemy combatants have been held at the Guantanamo Bay, Cuba detention facility. Some of the detainees that are held there today have been in detention since January 2002. This has created many debates because many people feel that they are being held illegally in direct violation of the US Constitution and International Law.
Suspension of Habeas Corpus Article I, Section 9 of the US Constitution, states that, “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" (http://www.slate.com). This means that every American is entitled to Habeas Corpus and that the only way that the government can suspend Habeas Corpus is during a rebellion or a direct threat to public safety. This is one of the ways that the Bush Administration justified detaining hundreds of suspected terrorist for years in detention facilities like Guantanamo Bay, Cuba. Their justification was that the suspected terrorist posed a threat to the safety and security of the American people and the United States Government. They also used President Abraham Lincoln’s decision to suspend Habeas Corpus in April 27, 1861 as an example of how and way it was important to detain suspected terrorist. On April 27, 1861, President Lincoln suspended the habeas corpus privilege on points along the Philadelphia-Washington route (http://www.slate.com). This was done after 20,000 Confederate sympathizers in Baltimore tried to stop Union troops from traveling from one train station to another en route to Washington, causing a riot (http://www.slate.com). President Lincoln viewed the Confederate sympathizers as a threat to public safety, and their actions could also be considered a rebellion against the United States Government. After President Lincoln ordered the suspended the habeas corpus, his Generals detained anybody whom they believed posed a threat to Union troops or public safety.
Habeas Corpus and the War on Terror After the September 11, 2001 attacks in the United States and the beginning of the War on terror the Bush Administration enacted one of the most controversial policies of their administration. This new policy enacted created many heated debates within the United States three branches of the U.S. Government, because it authorized the US Military to detain suspected terrorist/ enemy combatants for an undetermined amount of time. After the beginning of the War on Terror the Bush Administration order to use military commissions to try enemy combatants, which includes a provision denying habeas corpus rights to those subject to the order in federal court (http://search.proquest.com). These new polices also suspend the use of habeas corpus and it was justified by stating that these suspected terrorist were detained outside of the United States and they were being held at a location outside of the jurisdiction of the US Government. In later provision of these polices stated that the foreign nationals who have been held at Guantanamo Bay for six years without meaningful due process protections cannot be deprived of habeas corpus rights by either the president or Congress (http://search.proquest.com).
Boumediene v. Bush
Several law suits have been filed against the United States by detainees or families of the detainees in regards to the illegal detention of foreign nationals that are suspected to be terrorist or enemy combatants. In the case of Boumediene v. Bush the Supreme Court of the United States ruled on behalf of Lakhdar Boumediene, a naturalized citizen of Bosnia and Herzegovina. Boumediene was a detainee that was being held at military detention in Guantanamo Bay, Cuba by the United States. In this case the United States argued that Guantanamo Bay was not part of the United States, and under the 1903 lease between the United States and Cuba. Cuba had ultimate sovereignty over the territory even though it was being lease to the United States. But under the same lease agreement the United States had complete jurisdiction and control over the Naval Base (http://search.proquest.com).
The Boumediene v. Bush case was head alone the case of Al Odah v. United States. Both of these cases challenged the legality of detainee detention at the military base in Guantanamo Bay, Cuba and it also challenged the constitutionality of the Military Commissions Act (MCA) of 2006. The United States Military Commissions Act of 2006 was drafted after the Supreme Court's decision on Hamdan v. Rumsfeld. Military Commissions Act authorizes trial by military commission for violations of the law of war. The MCA was signed by President George W. Bush on October 17, 2006 (http://search.proquest.com).
On June 12, 2008, Supreme Court Justice Kennedy delivered stated that court ruled on 5-4 majority, stating that the prisoners being held at the Guantanamo Bay detention camps had a right to the habeas corpus under the United States Constitution. They also stated that the Military Commissions Act of 2006 was an unconstitutional suspension of that right (http://search.proquest.com). This decision was based on the fact that the United States had complete jurisdiction and control, over the territory (Guantanamo Bay Naval Base). Even though Cuba retained ultimate sovereignty over the territory, the United States still had control and jurisdiction over the Naval Base. This means that the people detained as enemy combatants at the Guantanamo Bay Naval Base were entitled to the writ of habeas corpus protected in Article I, Section 9 of the U.S. Constitution (http://search.proquest.com). Many people believe that enemy combatant should not have the same rights as an American Citizen. This can especially be said about suspected terrorist and anybody that threatens that safety and security of the United States. The Bush Administration justified the detention of hundreds of detainees at the Guantanamo Bay Naval Base, by stating that they were arrested outside of the United States and that is being held outside of United States territory.
President Bush as the as commander-in-chief did use the US Constitution to justify his actions, Article I, Section 9 of the US Constitution, states that, “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" (http://www.slate.com). This means that the commander-in-chief can suspend the writ of habeas corpus in the interest of public safety. I believe that this is a very valid justification as long as a reasonable person believes that there is still a threat to the public safety.
Article 1, Section 9, Clause 2 of the US Constitution, gives Congress power to suspend the writ of habeas corpus. Article 1, Section 9, Clause 2 further states that only the Federal Government and not the States, has the authority to suspend the writ of habeas corpus. It does not specifically state who has the authority to suspend the writ.
The role of the Supreme Court in protecting civil liberties, including the judicial philosophy is very important. The Supreme Court ensures that our constitutional rights are not violated and it also serves as part of the checks and balances that our government has. The Supreme Court has played a very important role in the war on terror and the court decisions have changed the way enemy combatants are detained and prosecuted in US Courts. The Supreme Court ruled that even if an enemy combatant is detained overseas and held outside of the United States, the detainee still have constitutional rights and the writ of habeas corpus does apply to them.
After reading and analyzing the writ of habeas corpus, the Bush Administration’s detention justification and the US Supreme Court rulings, I feel that the President and the United States Government should be given a little more flexibility in regards to the writ of habeas corpus. I can understand why the Bush Administration detained these suspected terrorist/ enemy combatants and how they can justify that these people are dangerous and that they do pose a threat to the American people. But I also feel that keeping them detained indefinitely without due process is wrong. I do think that the military should handle suspected terrorist/ enemy combatants that are arrested/ detained outside of the United States.

References
Staab, J. B. (2008). The war on terror's impact on habeas corpus: The constitutionality of the military commissions act of 2006. Journal of the Institute of Justice and International Studies. Retrieved September 23, 2012, from http://search.proquest.com/docview/213962970?accountid=32521

Redish, M. H., & McNamara, C. (2010). Habeas corpus, due process and the suspension clause:
A study in the foundations of american constitutionalism. Virginia Law Review. Retrieved September 22, 2012, from http://search.proquest.com/docview/759595988?accountid=32521

Levin-Waldman, O. M. (2012). American government. San Diego, CA: Bridgepoint
Education, Inc.

Greenberg, D. (2001). Lincoln's Crackdown Suspects jailed. No charges filed. Sound familiar? Slate.
Retrieved September 22, 2012, from http://www.slate.com/articles/news_and_politics/history_lesson/2001/11/lincolns_crackdown.html Azmy, B. (2009). Boumediene v. bush and the new common law of habeas. Rochester,
Rochester: Retrieved September 22, 2012, from http://search.proquest.com/docview/189874026?accountid=32521