Habeas corpus rights have always been a disputable point in the U.S. legislation. This paper attempts to analyze how this issue was evolving in the course of history and describe the perspectives of habeas corpus application in the contemporary situation of the war on terror.
Habeas corpus requires that a detainee should be taken to court to determine the legality of the detention. In England, the official Habeas Corpus Act was issued by Parliament in 1679; though, for the first time it was used as early as in 1305. However, nowdays, it is rarely resorted to and does not have much practical significance (Farell, 2013). In 1985, habeas corpus in the U.K. was superseded by the Police and Criminal Evidence Act.
Habeas corpus is more efficient in the U.S. than the U.K. It is resorted to when the state court’s determination contradicts the federal law. It can also be used to examine the sum of bail, extradition processes, etc. Habeas corpus is based on the Constitution (the Suspension Law) and is closely related to the protection of civil rights and liberties such as privacy, proper process of law, and equality before the law. The basic premise behind habeas corpus is that the authorities cannot detain a person without a just cause. Thus, habeas corpus is a means to dispute unwarranted government intrusion into one's personal life and gives an opportunity to demand fair and equal treatment.
Habeas corpus was suspended several times in the U.S. history. The first such endeavor belongs to President Lincoln. The reason for suspension was his generals’ requirement to establish military courts in order to curb the so-called “Copperheads” ( Peace Democrats). In 1871, habeas corpus was suspended by President Grant in response to the activity of Ku Klux Klan and civil right violations. In the contemporary situation of the war against terror, similar events occur.
Attempts to cancel habeas corpus are often made when serious civil law violations or acts of terrorism take place. For instance, after 9/11, President Bush tried to revoke habeas corpus. In November 2001, he issued the Presidential Military Order which gave the President the power to arrest non-citizens suspected in terrorism. In 2006, President Bush signed a law suspending habeas corpus right to enemy combatants. This law was severely criticized and judged an attack on the Constitution. Bush’s decision bears strong similarity to that of Lincoln, who also was guided by the dangers of war and whose action was declared unconstitutional.
In the contemporary situation of the war on terror, habeas corpus has become a controversial issue. In 2007, Congress approved the Habeas Corpus Restoration Act, returning the right of habeas corpus to enemy combatants. Some experts state that this is highly irrelevant since armed conflicts will become more dangerous for civilians as well as soldiers (Carafano, 2007). They believe that the Congress should not undermine the state’s ability to detain enemy combatants, because they are not entitled to POW status and do not have unlimited access to the U.S. courts. Granting them habeas corpus right is likely to damage the integrity of the laws of war. However, suspension of habeas corpus right to enemy combatants is extremely problematic, because the law does not precisely define who can be considered an enemy combatant.
In Boumediene v. Bush case, the majority of justices were of the opinion that habeas corpus right applies to people held in Guantanamo as illegal combatants (Garcia, 2008). All alternative procedures substituted by the Congress were considered not sufficient or effective. However, other justices argued that there had been no suspension of habeas corpus. Moreover, they underlined that the Detainee Treatment Act guaranteed all chief protections which habeas corpus provided. President Bush denied Boumediene’s right to habeas corpus.
The President as Commander-in-Chief of the Army of the United States ensures faithful execution of laws. He acts according to constitutional jurisdiction and has the power to displace civil law, including habeas corpus. When martial law is declared, ordinary administration is superseded as far as the President’s military power extends. Habeas corpus cannot interfere with military measures.
According to the Constitution’s Suspension Clause, only the Congress has the authority to suspend habeas corpus. The writ of habeas corpus can be suspended only in case of rebellion, engagement in a declared war, or national emergency (Carafano, 2007). As it was mentioned above, the President has the right to suspend habeas corpus in favor of military law. However, the Constitution actually prohibits states from engaging in war without the consent of the Congress. Thus, the Congress seems to be responsible for sanctioning habeas corpus suspension.
The Supreme Court has a great power over civil liberties since one of its functions is to interpret and clarify the Constitution. The Supreme Court judges follow moderate, conservative, and liberal judicial philosophy taking into consideration conventional value system and their personal morals as well as a support of progressive ideas (Lemiex, 2013). The Supreme Court is an ultimate jurisdiction over federal courts, and its decisions usually cannot be further disputed.
In the context of an unending war on terror, maintaining the delicate balance between civil rights and national security is becoming increasingly difficult. The fact that terrorism thrives in democratic environment is deplorable, but it is impossible to deny that excessive freedom of thought, expression, and movement sometimes is conductive to the execution of violent acts; in recent years, this has been proved more than once. This is why government control should be intensified even at the cost of some civil rights. Of course, the question is whether the public will appreciate such policy. However, the research conducted in 2010 showed that security issue is of greater concern for American citizens than their personal rights. 47% of the interviewed spoke in favor of national security and remarked that the government had not done all it could to adequately protect the country while only 32% were worried by the restriction of civil liberties.
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