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Civil Liberties, Habeas Corpus, and the War on Terror

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Civil Liberties, Habeas Corpus, and the War on Terror U.S. Presidents have been known to assert their presidential prerogative in times of crisis. Their decisions, sometimes haste and irrational, were rarely challenged by the Supreme Court because of extenuating circumstances. Over the years, our nation’s leaders made the tough decisions that raised eyebrows in the Supreme Court and caused confusion among the American public. The latest battle that has our nation in an uproar is terrorism. Since the attack on September 11, 2001, the American government has exercised its powers to detain suspected terrorist or illegal combatants for the sake of national security. Such actions violate the right of habeas corpus which grants detainees due process in court. Is it a question of what is right according to the executive powers of war or the right of habeas corpus? The need to explore the right of habeas corpus is an understatement; during the war on terror, it was simply an afterthought. Habeas Corpus has evolved over the course of history but still holds the same core principles. Unlike the evolution of man, habeas corpus has been subjective to interpretation and uncertainty of its true meaning. The Habeas Corpus Act 1679 was passed during the reign of King Charles II by what became known as the Habeas Corpus Parliament to define and strengthen the ancient prerogative writ of habeas corpus, a procedural device to force the courts to examine the lawfulness of a prisoner's detention (Charles II, 1679). According to the Article I of the U.S. Constitution, 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 (Rutherford Institute, n.d.). Although habeas corpus did not appear in the Bill of Rights, it was there to protect the civil liberties of American public. Habeas Corpus simply required that the government either charge the prisoners or let them go. It is not as simple as it sounds, prisoners captured in the war on terror were labeled as illegal combatants and continuously plotted to cause harm to the civil liberties of Americans. Only a few presidents felt it was necessary to suspend the writ of habeas corpus to protect the citizens. President Lincoln exercised his power during the Civil War when he placed Confederate territories that fell to the Union under military rule and ordered the arrest of people who were believed to be causing insurrection (Levin-Waldman, 2012). The Supreme Court eventually rules against him but he ignored their opinion. President Grant engaged in his own “war on terror” in South Carolina against the Ku Klux Klan. His actions ensured that clansmen were arrested and imprisoned would not be sprung from captivity by sympathetic legislators (Satanovsky, 2012). President G.W. Bush challenged the writ of habeas corpus with legislature to detain prisoners at Guantanamo Bay, Cuba. Each case drew tremendous backlash and concern from the public and the Supreme Court. The Supreme Court felt that such act was unconstitutional and violated the rights of the prisoners and citizens. Legislature were established to fight habeas corpus, the Antiterrorism and Effective Death Penalty Act and Military Commissions Act both set limits on habeas corpus in favor of the Executive Branch. Habeas Corpus is relevant to contemporary U.S. situations today more than ever. Since 9/11, the United States’ ultimate goal is to cease terrorist attacks on U.S. soil and around the world. That meant apprehending U.S citizens who happened to be of Middle Eastern decent under suspicion of Taliban involvement. Congress passed the Authorization for Use of Military Force (AUMF) which allowed the Bush administration to use all necessary and appropriate force against organizations or persons he determines planned, authorized, committed, or aided the terrorist attacks (Howe, n.d.). Habeas corpus applied only to those citizens of the U.S., but under military tribunal. The prisoners held at Guantanamo Bay sparked a battle between the Pentagon and its lawyers over the struggle of security and civil liberty. President Bush, without notice to Congress, signed a military order that gave the Pentagon power to try, sentence, and even execute anyone the president has identified as an illegal combatant. Several Supreme Courts cases have presided over the ambiguity of habeas corpus. The biggest debate in these proceeding is the action of the president justified or violation of the Constitution. The Court examine each case, give their opinions based of facts, and vote on the decision. In the case Boumediene v. Bush, the Court relied on the Constitution in deciding that the detainees at GITMO had the right to seek habeas corpus review. Justice Kennedy based his opinion off the fact even though the petitioner is an alien, he has the privilege of habeas corpus. Justice Kennedy’s opinion was also consistent with the Detainee Treatment Act of 2005 which provided procedures for review (October Term, 2007). Justice Roberts, along with Justice Thomas, Justice Scalia, and Justice Alito all dissented on the opinion of Justice Kennedy on the basis of jurisdiction. They felt that the case should have been reviewed at the district level. As the Commander-In-Chief, the President has to determine the best course of action in time of crisis. His primary agenda should be the protection of the United States and the civil liberties of the American people. The President has to take on the role of two individual during his presidency, the foreign policy president and domestic policy president. During times of war, it has not been uncommon for American Presidents to assume greater authority and claim greater power (Levin-Waldman, 2012). The President’s methods are often question as to the constitutionality, but anything less than doctorial will appear to be or misconstrued as weakness. Congress did not want to interfere with the progress the President made in GITMO. According to the Constitution, it is not clear on who can suspend habeas corpus. Congress can assist the President by passing legislature that aligns with the Constitution. The U.S. Supreme Court’s role is the same in any and every situation, to ensure the legislature pass by the Executive and Legislature Branches is constitutional. The opinions of the Court’s Justices set the precedents for future habeas corpus evaluations. The war on terror must be stop by any means necessary to protect civil liberties. President G.W. Bush stated with confidence in a press conference September 2001… “Whether we bring our enemies to justice, or bring justice to our enemies…justice will be done” (Inside Guantanamo Bay Video, 2009). President Obama signed an executive order to close the prison in Guantanamo Bay in 2009 despite the fact the war on terror is on-going. The writ of habeas corpus is unclear in some aspect so it is up to the American Government to pass legislature on procedures on handling suspected terrorists. It is truly a shamed that we live in a world where citizens are apprehended and detained because of suspicion or their nationality. In these difficult times. It is imperative that our government officials adhere to the guidelines set forth in the U.S. Constitution. Many will argue that President Bush was well within the guidelines of the Constitution when he signed the act authorizing the Pentagon to try, sentence, and even execute anyone he identified as an illegal combatant. It was not an afterthought because it was done for the sake of national security.

References
Charles II, 1679: An Act for the better securing the Liberty of the Subject and for Prevention of Imprisonments beyond the Seas. Statutes of the Realm: volume 5: 1628-80 (1819), pp. 935-38. URL: http://www.british-history.ac.uk/report.asp?compid=47484.
Halperin, J & Haptas, J. (Producers), & Cohen, B. & Else, J. (Directors), (2009). National Geographic Explorer: Inside Guantanamo Bay [Video Recording].
Howe, Z. (n.d.). Detainment Power. Retrieved from Ashford University Library.
Levin-Waldman, O. (2012). American Government. San Diego: Bridgepoint Education.
Longley, Robert (n.d.). Bush and Lincoln both Suspended Habeas Corpus http://usgovinfo.about.com/od/rightsandfreedoms/a/habeuscorpus.htm https://www.rutherford.org/constitutional_corner/habeas_corpus/
Satanovsky, G. (2012). President Grant suspends habeas corpus. Retrieved from http://famousdaily.com/history/president-grant-suspends-writ-habeas-corpus.html
Supreme Court of the United States (2007). Retrieved from http://www.supremecourt.gov/opinions/07pdf/06-1195.pdf

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