Habeas Corpus in the era of terrorism
In a 5-4 ruling, the United States Supreme Court declared that individuals held as “enemy combatants” at the American detention facility at Guantanamo Bay, Cuba have the right to immediately initiate legal proceedings for habeas corpus petitions in the US criminal justice system to denounce the legality of their detention.
Majority of the inmates in the facility have been detained under hellish conditions, bearing with alternating instances of torture and forced isolation, for more than half a decade. Regrettably, during all the time that these people were forcibly detained under such horrific conditions, none were given the right to have their cases reviewed in US court of law (Burton, 2008, p. 1).
The decision of the United States government to detain terrorists has triggered highly charged and emotional battles. The center of the battles is fought regarding the right of habeas corpus. The right of habeas corpus has long been regarded as the primary safeguard of civil rights and provides a check to the capricious actions of government by requiring the State in justifying the detention of a person.
The United States facility at Guantanamo, or more known as “Gitmo”, in Cuba has long been associated with torment, secrecy and misuse of executive might. The use of the facility has come to be defined as the symbol of legal “lawlessness” in the perception of the global community. Established with the objective of securing the safety of the United States, Guantanamo has come to be synonymous with debilitating that goal and subverting American security and the values that the United States has advocated for (Hafetz, 2011, p. 1).
The only court trials available to them were staged “trials” by military commissions that fell far below the requirement for constitutional as well as international laws. The system was designed not only to exist outside of the bounds of the law, but to be out of the reach of any court in the United States or of any international jurisdiction (Hafetz, 2011, pp. 1-2).
The central concern of a dynamic libertarian society is the development and establishment of a state that will safeguard people against the hostile intentions of another and at the same time allowing for the unhindered course of their lives bereft of any policy or program that will unduly interfere with this objective in maintaining order. In essence, the state must craft a state where is protected from the hostility in the other while maintaining an optimal situation that the lives of people are not unduly hindered.
Wilhelm von Humboldt, in The Limits of State Action, proffers a suggestion on the central dilemma of government: how a government structure can accommodate both to attain a sufficient security level as well as limit itself from infringing on the rights of its citizens, on individual liberties that are the base of all possibilities in developing and harnessing the capacities of each individual (Hardin, 2003, p. 77).
Simply stated, habeas corpus mandates that the government justify the continued detention of the person before a court of law. Once regarded as “the most important human right in the Constitution”, the right of habeas corpus finds itself at the center of the new policy of the US government in detaining and treating “enemy combatants” (American Constitution Society for Law and Policy, 2011, p. 1).
Habeas Corpus: History and importance
The right to habeas corpus has its origins in English Common law. Originally crafted as a means to call on the person to appear before a judicial body, higher courts utilized the writ of habeas corpus during the 14th century as a way to ask the grounds why a person is detained owing to the orders of the lower courts.
However, the end of the 16th century saw the courts using the writ to query the detentions that were mandated by the King’s Pricy Council. By the 17th century, Parliament enacted measures designed to strengthen the right of habeas corpus and rein the activities of the Council under the scope of Parliament, resulting in the enactment of the Habeas Corpus Act of 1679 (Farrell, 2011, pp. 5-6).
Throughout its history, the United States has debated the need for balancing the rights of individuals as well as the need to strengthen security during times of national exigency. In the course of the Civil War, then President Abraham Lincoln challenged the premise whether the government must be “too strong” for its needs to protect the rights of its people, and too debilitated to defend itself from attacks. An oft repeated principle invoked during these times is the Roman maxim “Silent leges inter arma”. Simply put, the “power of the law is suspended during times of war”.
In recent times, Chief Justice William Rehnquist in a decision reconstructed the maxim given by Cicero, stating that the law is not that muted in times of war; however, the maxim, according to Rehnquist, speaks with a different tone. Rehnquist could have taken the angle that in times of war, the voice of the law has often been silenced to the point that it cannot be heard. Quoting Francis Biddle, the Attorney General in the administration of President Franklin Roosevelt:
“The Constitution has not greatly bothered any wartime President”
Or in the case of English leader Oliver Cromwell, in comprehending the balance of satisfying the need for citizens rights and securing the state
“Necessity hath no law (Lobel, n.d., pp. 25-26).
The policies of the Bush Administration on the “war on terror” and the denial of the right of habeas corpus to “enemy combatants” captured in the course of the war was seen as the national security agenda of the US government at the time, policies that were roundly opposed and vilified by liberals (Gregory, 2013, p. 269).
The High Court has traditionally inclined itself with the infringements of civil rights in the course of war or national emergency-in the immediate aftermath of the war or when the threat of the emergency had ceased. Federal magistrates sent to prison dozens of individuals under the Sedition Act; all of these individuals were subsequently pardoned by President Thomas Jefferson after his assumption into office.
The High Court unanimously affirmed the ruling in Debs for challenging the draft as well as the convictions rendered under the Espionage Law during the First World War. Justice Byron Black, one of the strongest defenders of the Bill of Rights to sit on the High Bench, penned the opinion of the Court affirming the decision of the Court in Korematsu, a ruling that as concurred in by such defenders of civil rights such as William O’ Douglass, Felix Frankfurter, and Harlan Stone (Lobel, n.d., p. 26).
Current Holding and actions by Congress
The Obama as well as the preceding Bush governments aggressively fought efforts to extend the right of habeas corpus to terrorist detainees. Analysts proffer that the initial choice to house the prisoners at Guantanamo Bay. The decision was made with the view that the criminal justice system in the United States lacked the jurisdiction over the prisoners, a holding that was supported by a memo issued by the United States Department of Justice.
In the aftermath of the holding of the United States Supreme Court in Rasul v. Bush, holding that the right of habeas corpus is available to non Americans detained at Guantanamo Bay, Congress immediately adopted legislation with the objective of stripping Federal courts of their mandate to decide such cases. The Supreme Court ruled that this law was in violation of the Constitution when it ruled in Bourmedine v. Bush.
When the Federal district court in 2009 discovered that the Bourmedine decision allowed some detainees at Bagram to have access to habeas corpus, senior Obama government policy managers and makers appealed the decision, citing the argument that granting access to this right to its “enemy” would significantly bog down effective executive decision making and compromise military operations (Farrell, 2011, pp. 4-5).
Now, with the “Gitmo” debacle in the media, Congress is seriously considering the extension of the right of habeas corpus. However, Carafano (2007, p. 1) states that extending the right to terrorists detained will not improve the security of the United States and will not win any additional allies of the United States. In addition, the conduct of armed conflict will become more dangerous for elements of the United States military. The existing legal mechanism permits members of the American forces to perform their jobs without having to negatively impact their effectiveness or thinking about the impacts of their conduct on international law.
Carafano (2007) states that Congress should not weaken the capacity of the United States to arrest and detain hostile combatants, and if needed, try these combatants for war crimes. In addition, by extending the right to terrorists, places military forces and civilians in great risk by encouraging and rewarding terrorism with the access to rights. To Carafano, enemy combatants in the war of terror must not be entitled to Prisoner of War (POW) status or even seen in the light of the provisions of the Geneva Convention, let alone unrestricted access to rights enshrined in the US Constitution.
The development and application of civil liberties are safeguards for the people; the actualization should improve the quality of life in the United States and for its citizens. The defense of these rights would be quite nonsensical if these rights were to worsen the life of those to whom these would apply. However, by the application of these laws, people who are not the target of these laws might be unwittingly affected by the stringent application of the same.
Laws that are crafted to apply to terrorism cannot be tailored as to exempt non terrorists. To cite an example, Arab Americans who are not even remotely active in acts of terrorism cannot be exempted from activities and policies monitoring suspected Arab Americans who may be sympathetic to terrorist and extremist organizations (Hardin, 2003, p.85).
The prevailing response of the United States to hostile elements is not new; “Madisonian” policies of extending liberal suspicion. Scholars believe that Americans are wary of their government; however, the mistrust in government is on the downswing. Government must use all of its resources to regain the trust of Americans with regards to civil rights and its protection even as the country moves forward against terrorism (Hardin, 2003, p. 94).
American Constitution Society for Law and Policy (2011) “Habeas corpus and the war on terror”. Retrieved 29 March 2014 from <https://www.acslaw.org/acsblog/habeas-corpus-and-the-E2809Cwar-on-terrorE2809D>
Burton, J. (2008). “US Supreme Court upholds habeas corpus for Guantanamo Bay prisoners”. Retrieved 29 March 2014 from <http://www.globalresearch.ca/us-supreme-court-upholds-habeas-corpus-for-guant-namo-bay-prisoners/9310>
Carafano, J. (2007). “The war on terrorism: habeas corpus on and off the battlefield”. Retrieved 29 March 2014 from <http://www.heritage.org/research/reports/2007/07/the-war-on-terrorism-habeas-corpus-on-and-off-the-battlefield>
Farrell, B.R. (2011). “Access to habeas corpus: a human rights analysis of U.S. practices in the war on terrorism”. Retrieved 29 March 2014 from <http://www.uiowa.edu/~tlcp/TLCPArticles/20-1/Farrell.Final.JYZ.04132011.pdf?origin=publication_detail>
Gregory, A. (2013). The Power of Habeas Corpus in America: From the King’s perspective to the War on Terror. Cambridge: Cambridge University Press
Hafetz, J. (2011). Habeas Corpus after 9/11: Confronting America’s new global detention system. New York: New York University Press
Hardin, R. (2003). “Civil Liberties in the era of mass terrorism”. Retrieved 29 March 2014 from <http://www.nyu.edu/gsas/dept/politics/faculty/hardin/research/CivLiberties.pdf>
Lobel, J. (n.d.). “The war on terrorism and civil liberties”. Retrieved 29 March 2014 from <http://chapters.rlpgbooks.com/07/425/0742535983ch2.pdf>