Since September 11. 2001. Americans have faced a new enemy that is non distinguishable by conventional footings of the jurisprudence of war. As a consequence of this fact. the detainment of these enemy forces has brought about a big argument among. largely. the Executive subdivision and the Supreme Court. At the centre of the argument is the rights of the enemy detainees. The Supreme Court argues that because their detainment is at a location that is under the complete control of the United States. their rights are blanketed under the Suspension Clause of the Constitution and as such. they should be granted the right to seek Habeas Corpus. The Executives maintain that improper enemy battlers have no rights under the Constitution of the United States and that the President retains full control over their detainment.
This paper will look at the English and American background of Habeas Corpus and how it plays into the landscape of war today. I will besides briefly expression at past suspensions of the writ. every bit good as the positions of the Executive. Legislative. and Judicial subdivisions and how the writ applies to alien enemy battlers. I will besides offer my ain position on the same. Quite merely set. an improper enemy battler caught contending against the United States oversees and brought to a location that the U. S. does non hold sovereignty over. should non be afforded the same rights as the citizens and foreign occupants of our great state that they fight against.
The ‘Great Writ’ of Habeas Corpus has its’ roots in English Common Law dating back every bit early as the thirteenth century. The actual significance in Latin is “to have the body” which rather fundamentally obliged that the prison guard conveying the accused before a tribunal ( the King’s Bench ) to find if his detention and parturiency was lawful. In fact. the writ was meant to modulate prison guards. decide issues with legal power and supervise the powers of the magistrates ( Halliday. J. D. . 2010 ) . It was non a tool used to let go of the captive. but a tool of administration.
When the writ traversed the Atlantic Ocean and came to America. it was. and still is. considered the most of import safeguard ofpersonal autonomy. Habeas Corpus is protected in the Constitution of the United States in Article 1. Section 9 wherein it states “The Privilege of the Writ of Habeas Corpus shall non be suspended. unless when in Cases of Rebellion or Invasion the public Safety may necessitate it” ( Levin-Waldman. 2012 ) . From its origin in the United States. Habeas has remained virtually unchanged. The Writ has merely been suspended by the President and authorized by Congress four times in America’s history with the first case when President Lincoln suspended it during the Civil War in order to confine opponent forces who were trying to forestall military personnels seeking to protect the Capital. Since so. it was used by Grant in the Ku Klux Klan Act. the rebellion in 1902 and in 1941 after the onslaught on Pearl Harbor ( Jackson. 2010 ) .
Even during these times the suspension was lifted one time the war or menace thereof was over ( Langford. 2003 ) and those detained as a consequence were either released or tried and convicted. It wasn’t until the hideous onslaughts of September 11. 2001 where terrorist agents used commercial aeroplanes as arms of mass devastation to kill 1000s of guiltless civilians within the boundary lines of the United States that the issue of the suspension of Habeas Corpus came to the head one time once more. After the onslaughts. Congress wrote the Authorization to Use Military Force ( AUMF ) . which granted the President to utilize “all necessary and appropriate force…against all states. individuals. secret agents. etc. involved in the plotting and executing of the September 11th attacks…” ( Piret. 2008 ) . It is good known that the President’s first precedence is that of Commander in Chief of the Armed Forces in times of War. After the horrific onslaughts in 2001. President Bush declared a “War on Terror” .
This type of war has no precedency in history in which to travel by ; it consists of unconventional combatants utilizing unconventional methods of onslaughts unlike any seen under the jurisprudence of war. ] As a consequence of these fortunes. it was important for the President to originate his wartime authorization to confine combatants contending against the United States and her Alliess and confine them in a location in order to protect the nation’s security against future onslaughts. The President one-sidedly labelled these detainees as “unlawful enemy combatants”- individuals who did non wear uniforms of a state or province. carry conventional arms. or direct their assaults purely on armed forces- which is the definition given to captives of war ( POW’s ) ( Acharya. 2012 ) .
Due to the huge allotment of the military’s assets and service members contending in Iraq and Afghanistan. the President needed a location to confine these battlers off from the battleground. Guantanamo Bay or GITMO. GITMO is a military location in Cuba that the United States has had an open-ended rental for since 1903. Harmonizing to the Bush disposal. this location was ideal because the country was under Cuban sovereignty but under the complete control of the United States. This meant that the long weaponries of the jurisprudence would non make to GITMO and the President basically had free reign as to the intervention and length of detainment of these improper enemy battlers. With this position. the disposal argued that they could keep a detainee for an unrevealed sum of clip without test because the War on Terror was basically on-going.
Besides. this position allotted that the detainees could non be tried in civilian tribunals or be granted the rights and protections afforded to POW’s under the Geneva Convention ( Piret. 2008 ) . Because of these alone fortunes. the Courts became afloat with requests for Habeas Corpus rights. The Executive subdivision argued that the tribunals could hear applications merely “within their several jurisdictions” and that Guantanamo did non fall within U. S. sovereignty. fundamentally asseverating that the Judgess had no mandate to hear instances from non-citizens that were held in a topographic point where Cuba retained sovereignty. Because the state was at war. the President retained full war clip powers and could basically be the justice. jury and prison guard of the accused held at Guantanamo Bay ( Healy. 2012 ) . As a consequence. a few groundbreaking instances came in forepart of the Supreme Court.
One of these instances was Rasul vs. Bush wherein the Supreme Court rejected the administration’s claim that the President had the power to imprison those accused of terrorist activities without entree to attorneies and without entree to any possibility of judicial reappraisal ( www. oyez. org ) . The determination held that the detainment of the suspects did in fact hinder on the Fifth Amendment rights.
After the impact of Rasul and another instance decided by the Supreme Court on the same twenty-four hours. Hamdi v. Rumsfeld. the executives were forced to make military courts called Combatant Status Review Tribunals ( CSRTs ) . that afforded minimum protection to captives ( Foley. 2007 ) . However. these courts did non let for the captive to obtain legal advocate. did non hold juries. and could trust on rumor and coerced confessions by inexperienced persons. Unfortunately. these courts were to a great extent weighted towards the authorities and even though the procedure did consequence in the release of a figure of detainees. the bulk of CSRT’s have affirmed the detainees to be improper enemy battlers ( Chesney. 2008 and Foley. 2007 ) . The executive subdivision. despite these facts. argued that the CSRTs most closely resembled that of courts-martial that were afforded to members of the military. while still falling far abruptly of Habeas rights.
Amidst this instead het argument amongst the Supreme Court and the Executive subdivision. Congress remained on the outskirts for the most portion. Congress has ne’er attempted to curtail or interfere with the President’s authorization to confine combatants ; their chief points were that the intent of military detainment was entirely preventive and grounds of liability is non necessary for the United States to confine a suspected terrorist. However. because of the Court’s opinions. Congress did ordain the Military Commissions Act of 2006. More or less. the MCA afforded the detainees the right to dispute the footing of their detainment. the right to hear charges. and the right to attest. present grounds. and informants. Nevertheless. MCAs still allowed for coerced grounds to be produced. Additionally. the MCA empowered the Executives further and further delineated the tribunals from the reappraisal procedure afforded under Habeas Corpus.
Coinciding with the MCA. Congress besides intervened with the Detainee Treatment Act ( DTA ) that basically provided a replacing mechanism for Habeas for judicial reappraisal where the Court of Appeals could find if the CSRTs complied with ordinances in topographic point by the Defense Department and if those ordinances were consistent with the Constitution and Torahs of the United States ( Chesney. 2008 ) .
Despite the attempts of both the Executives and Congress to consume the function of the Courts. the Supreme Court handed down a landmark 5-4 opinion in Boumediene v. Bush. Bouemediene brought up the issue of constitutional privilege of Habeas which it held could non be withdrawn without conforming to the Suspension Clause in the Constitution. In its opinion. the bulk found that the MCA deprived the Federal Courts to hear habeas claims. hence unconstitutionally depriving their rights to the same ( Piret. 2008 ) . The Court held that even though the U. S. did non hold sovereign control over GITMO. the complete control over the base made habeas rights a necessity.
The bulk besides struck the DTA claiming that it fell short and did non supply a degree of protection required to overrule suspension of habeas. Because of Boumediene. Congress can non ordain legal power –stripping statute law to deny executive detainees’ entree to judicial reappraisal that it twice tried to make with MCA and DTA. Nevertheless. that the “Court and the writ of Habeas Corpus is indispensable for supervising separation of powers. and the trial for finding the range can non be subjected to use by those whose power it is designed to restrain” ( US Newswire. 2011 ) .
On the other side of the tribunal. the dissidents thought that the majority’s determination ignored the Constitution’s construction and defied Congress in set uping processs for entreaties. They went farther to state that the historical study is inconclusive about foreign captives outside of formal U. S. district. and Justice Scalia says that the fact that even in the English instances. no foreigner was granted or rejected the right to the writ which was further cogent evidence that Habeas was non in favour ( US Newswire. 2011 ) . The dissidents furthered their point by saying that the Boumediene opinion is “the most generous set of protections of all time afforded to foreigners detained as enemy battlers in any war. ever” and that the determination was non about the detainees but about the Court’s control of Federal policy ( Acharya. 2012. Healy. 2012 and Piret. 2008 ) .
In visible radiation of all of the contention environing Guantanamo Bay and whether the detainees have a constitutional right to it. one needs to look carefully once more at the Suspension Clause “The Privilege of the Writ of Habeas Corpus shall non be suspended. unless when in Cases of Rebellion or Invasion the public Safety may necessitate it” . It is the last portion of this clause that needs the most accent when looking at it from the “War on Terror” perspective “…the public Safety may necessitate it. ” Because terrorists are bred from many states. do non hold a uniform to be easy recognized by. and can walk within the boundaries of the United States virtually undetected. the jurisprudence of war holds a different land. Terrorists are by far and big deeply difficult to separate as there is no set guideline.
Regardless of the fact that a combatant combatant is a U. S. citizen or an foreign battler. they should all be reviewed in the same mode. as that of improper enemy battlers. Under that position. they should non be afforded the rights allotted to the citizens and resident foreigners of the United States. Having said that. it should be the President’s exclusive duty as Commander in Chief to confine these combatants for every bit long as it takes to guarantee the safety of Nation.
On another degree. the Supreme Court in its Boumediene opinion left out a few cardinal factors to find a proper process in the detainment of the improper enemy battlers in countries other than Guantanamo Bay. It besides did non clearly specify whether its opinion affected tests presently scheduled to happen in CSRTs. The Court did non set up whether allowing habeas rights to detainees at Guantanamo would farther set Americans’ lives at hazard by conveying them into the really states that they fight against. Habeas is non about the cogent evidence of war offenses but about finding the position of those detained- whether they are POWs. Al Qaeda. or inexperienced persons ( Yoo. 2012 ) .
Given that Congress waited about five old ages to ordain any type of statute law to find this component is what has given America a bad repute among the planetary community. If Congress had acted in a more expedient mode. those detained who ended up being guiltless or POWs should hold been moved to another location and Guantanamo Bay would hold genuinely been for improper enemy battlers.
Furthermore. because Guantanamo Bay. even though under Cuban Sovereignty. is in all respects a U. S. military installing under the complete control of America. and hence the Commander in Chief. any type of reappraisal should be conducted by military members and non civilian tribunals. The detainees. if allotted any sum of autonomies under the Geneva Convention. should be maintained entirely by the Armed Forces. There is nil that states that the Supreme Court has the power to pass the President’s Commander in Chief powers. therefore the Supreme Court is incorrect in its averment that the detainees should be afforded habeas rights. The tribunals ejaculation of this
fact seems to be merely to guarantee them of their ain federal powers than the rights of the detainees. They assert to retain their legal power merely because Congress sought to release those powers in the MCA and DTA.
In shutting. the writ of Habeas Corpus should non be afforded to detainees that have been established as improper enemy battlers. Foreigners detained during combat with American forces in a foreign theater. without uniforms or conventional arms. who seek to harm or kill those other than armed forces are non to be determined as POWs or inexperienced persons and should be maintained at a location. Guantanamo Bay. which is outside of U. S. sovereignty. While these battlers could be allowed a reappraisal as outlined in the MCA. their foreign battler position does non represent the right to Habeas Corpus. With the Supreme Court’s hole-ridden opinion in Boumediene. it should be expected that there are many inquiries which still need replies which are likely to come about in future habeas instances.
Regardless of that fact. given that the War on Terror is non likely to come to a close any clip shortly. foreign improper battlers should stay under the detainment of the Commander in Chief. at whose discretion it is as to how to manage them. non the Supreme Court. whose chief theater is civil and condemnable affairs. non affairs of war.
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