The Role of Habeas Corpus in America

Jason S. Pulliam

POL201

Cindy Campbell

January 21, 2013

One of the founding guarantees that the United States is built upon is its right to fair court system and to be judged for any crime that you are suspected in committing. One of these rules which are considered a writ of habeas corpus is basically a law that guarantees that a person or persons that are charged with a crime in the United States shall be brought in front of a court or judge to have the case heard. And also to protect them against illegal imprisonment for the crime that is suspected to be committed. In 1215 when the Magna Carta was written by Nobles because of the abuse they were taking from the kings of their areas. It was written to set up rules to be governed by and allow the land owners to have rights under said Kings. One of these rules was. “No freemen shall be taken or imprisoned or disseized or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land” (1215). This is considered the earliest mention of the idea for what habeas corpus is built upon. In the United States in the US Constitution and the Bill of Rights amendment V states, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” In 2006 a then President Bush signed a law that suspended the right of habeas corpus to people that were considered to be enemy combatant and were considered to be coconspirators in the acts of terror on the United States. This practice was also enacted by President Lincoln in the early days of the Civil War. “Evidence of Lincoln's evildoing includes the arrest of John Merryman, whom Lincoln unconstitutionally imprisoned on faulty grounds. Lincoln defied the efforts of Roger Taney, the Chief Justice of the Supreme Court, to grant Merryman a writ of habeas corpus.” (SJR 2012) The enemy combatants that were captured during the war on terror were taken and captured basically for fighting a war that was in their views brought to their county by the United States. But the combatants were in the United States eyes players in the active roles in the terror that was waged on the United States and were to be charged as such. The United States needed time to build cases against such offenders and decide who was involved and who was not. The suspension of habeas corpus was enacted so as to allow the United States to isolate these combatants. In 2002 Lakhdar Boumediene and five other Algerian were seized by Bosnian police when U.S. intelligence officers suspected their involvement in a plot to attack the U.S. embassy. The six men were taken to Guantanamo Bay Cuba and detained as enemy combatants. Boumediene filed a petition for a writ of habeas corpus, alleging violations of the Constitution's Due Process Clause, various statutes and treaties, the common law, and international law. On June 12, 2008, Justice Anthony Kennedy delivered the opinion for the 5-4 majority holding that the prisoners had a right to the habeas corpus under the United States Constitution and that the military commission act of 2006 was an unconstitutional suspension of that right. “Boumediene correctly grounded the analysis in the Suspension Clause, not the Due Process Clause. The Court held that the Suspension Clause demands a traditional habeas process, simply asking whether the detention is legally and factually authorized. This view challenges the set of standards that judges currently use in executive detention cases and also has implications for domestic habeas; it could ground innocence claims in the Suspension Clause.” (Brandon 2012) In the case of Boumediene vs. Bush it was evident by the decisions brought back by the 9 justices that heard the case and the 5-4 for the arguments brought against the Bush administration, that this topic is a highly contested in the judicial courtrooms all across America. As stated before it was President Bush who suspended habeas corpus for the enemy combatants who were suspected of committing or attempting or planning of attempting crimes against the United States, or allies of the United States. In the case of the prisoners that were captured and suspected of crimes on the war on terror were held in a military base in Guantanamo Bay, Cuba. The role of Congress in suspending habeas corpus is allowing the president to suspend the combatants to be allowed protection under the habeas corpus rules. The role of the Supreme Court was and is to decide on the merits of what is written as laws and this country to make a on the cases that are brought before them. In the wake of the tragedy that was pulled off on that fateful day back on September 11, 2001 the United States was dealt a huge blow by outside sources. After the US discovered that it was a terror attack we set in motion one of the biggest and wide scale man hunt in recent years. The US was looking for anything and anyone who was planning or was involved in any terror attacks that were against the United States or its allies. These enemy combatants were scooped up and taken to the military base in Guantanamo Bay, Cuba and treated as prisoners of the war on terror. The United States then had to investigate if these people were who they thought they were and had to keep them till their investigation was done. This was a needed policy as to keep the Americans who were still fighting over seas and around the world safe from further harm that these so called military combatants. “One of the most controversial Bush administration policies since 9/11 has been the executive order to use military commissions to try enemy combatants, which includes a provision denying habeas corpus rights to those subject to the order in federal court. The latter provision has precipitated a wide-ranging debate among the three branches of the U.S. government over whether the U.S. can deny habeas corpus rights to foreign nationals held at Guantanamo Bay, Cuba whom the government seeks to prosecute during the war on terror.” (James 2008) It is my personal belief that had the United States not done this the war on terror would never have progressed to the state it is today. I do believe that all persons that are believed to have done wrong in the United States should receive the right to have their case brought before a judge or court as to not be held imprisoned illegally or without merit. But I also believe that under great and unwarranted acts against the United States should be allowed such tactics such as suspension of the rights of habeas corpus.

Brandon, L. G. (2012). Habeas corpus and due process. Cornell Law Review, 98(1), 47. Retrieved from http://search.proquest.com/docview/1197631096?accountid=32521
James, B. S. (2008). The war on terror's impact on habeas corpus: The constitutionality of the military commissions act of 2006. Journal of the Institute of Justice and International Studies, (8), 280-297. Retrieved from http://search.proquest.com/docview/213962970?accountid=32521
S, J. R. (2012). The body of john merryman: Abraham lincoln and the suspension of habeas corpus. Choice, 49(8), 1518-1518. Retrieved from http://search.proquest.com/docview/1019973445?accountid=32521 undefined. (1215). Magna Carta. In The Magna Carta 1215. Retrieved 1/03/2012, from http://www.constitution.org/eng/magnacar.htm.