The Writ of Habeas Corpus is considered one of the most prized aspects of the English Common Law.
The Writ of Habeas corpus specifically refers to the right to challenge one’s detention. It is also the state’s ability to force someone to appear in court. writs of Habeas Corpus work both ways. It was common in England, in the period of the conflict between Protestants and Catholics, to be held indefinitely in the Tower of London without trial. Political prisoners disappeared because they had not broken the law, but have opposed the crown’s policies.
In America, the Writ of Habeas Corpus was proudly continued after freedom from England had been established. Mention of the Writ of Habeas Corpus in discussed in Article One of the American Constitution. Article one discusses the powers of the Congress. Specifically, where the Writ of Habeas Corpus was mentioned, the language outlined the Congressional powers of investigation.
By legal tradition, Habeas Corpus applied to the courts. Habeas corpus applied to state criminal cases long before the 1960s civil liberties expansions of Gideon v. Wainwright and Miranda v. Arizona. The need to know the crime for which one had been charged is the essence of American legal system.
However, in a clever legal maneuver, the framers of the Constitution did not include the Writ of Habeas Corpus in the Bill of Rightshe Congress shall have Power – To make all Laws which shall be necessary and proper for carrying into Execution the foregoing, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
Traditionally, this clause clause, delegating great authorities to the President, or Executive branch, is reserved for points at which the nation is in great peril. There are only three instances in which the executive used that ability to temporarily nullify the Writ of Habeas Corpus.
The Alien and Sedition Act abolished the granting of writs of Habeas Corpus following the diplomatic and domestic perils of the threat of foreign French or British saboteurs during the French Revolution. During the Civil War, Abraham Lincoln suspended Habeas Corpus because he believed that the Constitution was not designed to be a suicide pact. He detained known Confederate spies indefinitely until the war was over.
In the current Global War on Terror, Habeas corpus is suspended for those who are deemed to be “unlawful enemy combatants,” otherwise known as terrorists. Alleged terrorist in detention camps in Guantanamo Bay, Cuba and Bagram Air force base, Afghanistan are held indefinitely.
They are not granted Writs of Habeas Corpus as a result of their alleged “unlawful enemy combatant” status. This places detainees in a limbic state, as many so-called enemy combatants were detained as a result of the confusing fog of war. They cannot challenge their detention because the law presupposes the guilt of “unlawful enemy combatants.” This is unprecedented in American jurisprudence. Even Lincoln detained rebels as a means of combating a definitive domestic insurrection.
The Global War on Terror is much more complex than the Civil War. Denial of Hebeas Corpus remains in the Obama Administration. Guantanamo Bay’s detention center is still opened despite pledges to close down the camp. The closing of the camp was a symbolic gesture of renunciation of the policies of the previous administration. However, to this day, not one Writ of Habeas Corpus had been granted to one Guantanamo detainee. Obama’s continuous tacit acceptance of the prolonged detention of “enemy combatants” speaks volumes on the view of the current administration regarding Civil Liberties.
The President reserves this authority in times of national peril. However, the question of Habeas Corpus in application to the War on Terror is a question of policy, in good faith with tradition, or opening the floodgates for a war on the citizenry. “Unlawful enemy combatant” is defined broadly enough to mean an individual that protests against the United States.
Too much discretion is given to the executive. It is the duty of the Congress or the Judiciary to check executive authority to keep the definition of “unlawful enemy combatant” within the scope of foreign terrorism. However, agreeing with the president on his terrorism policy is contingent upon how one views terrorism: as an act of war or a serious criminal act. Precedent looms on the side of criminality of terrorism. However, the trauma of the events of September 11, 2001 have changed the American perception of trauma.