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No Free Man Shall Be Taken or Imprisoned

In: English and Literature

Submitted By benitaholt
Words 1363
Pages 6
The war on terror is a main stream topic. Shall no free man be taken or imprisoned? Unlawful or illegal combatants are civilians or citizens deciding to take part in armed conflict in violation of the laws of war. For these types of people, GITMO, would be like a nation who didn’t honor habeas corpus… people would simply disappear into the prisons without ever having their day in court. (J. Weinerman 2012). War on terror, habeas corpus, and civil liberties are serious headlines and I will discuss how all of these subjects share their relationship.
"Habeas Corpus" is a Latin phrase which means "you have the body." It is the right by which a person can go to court and challenge the validity of his/her imprisonment. In the Anglo-Saxon law, habeas corpus is the oldest human right. It even preceded the British Magna Carta of 1215 CE. The latter confirms the right by stating: "No free man shall be taken or imprisoned ... except by ... the law of the land." 2 This particular freedom has been in our history’s timeline for years to come. "According to Utah State Courts, habeas corpus is a civil proceeding used to review the legality of a prisoner's confinement in criminal cases. Habeas corpus actions are commonly used as a means of reviewing state or federal criminal convictions. The petitioner alleges the convictions violated state or federal constitutional rights. State habeas proceedings start in state District Court; federal habeas proceedings start in federal District Court." 1
Robert Parry of the Baltimore Chronicle wrote an article talking about how Bush and the Republican-controlled Congress effectively created a parallel legal system for 'any person', American citizen or otherwise, who crosses some ill-defined line. He was speaking on the Military Commissions Act of 2006 which was signed into law during 2006-OCT. The law contains a section stating that: "... any person subject to this chapter who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States ... shall be punished as a military commission … may direct." (Robert Parry 3). Although it could be different eras somewhere in somehow the habeas corpus was included in a heap of laws. They can be worded different all with the same meaning.
“Most nations today follow one of two major legal traditions: common law or civil law. The common law tradition emerged in England during the Middle Ages and was applied within British colonies across continents. To an American familiar with the terminology and process of our legal system, which is based on English common law, civil law systems can be unfamiliar and confusing.”1 Courts of law and courts of equity thus functioned separately until the writs system was abolished in the mid-nineteenth century. Even today, however, some U.S. states maintain separate courts of equity. Likewise, certain kinds of writs, such as warrants and subpoenas, still exist in the modern practice of common law. An example is the writ of habeas corpus, which protects the individual from unlawful detention. Originally an order from the king obtained by a prisoner or on his behalf, a writ of habeas corpus summoned the prisoner to court to determine whether he was being detained under lawful authority. Habeas corpus developed during the same period that produced the 1215 Magna Carta, or Great Charter, which declared certain individual liberties, one of the most famous being that a freeman could not be imprisoned or punished without the judgment of his peers under the law of the land, thus establishing the right to a jury trial.
“Few presidents have interpreted their wartime powers as broadly as Abraham Lincoln, whose presidency—for all of its many successes—did have what some consider a "dark side." Most famously, Lincoln suspended the writ of habeas corpus in the first year of the Civil War, responding to riots and local militia actions in the Border States by allowing the indefinite detention of "disloyal persons" without trial. Habeas corpus, which literally means "you have the body," is a constitutional mandate requiring the government to give prisoners access to the courts.”(pg1). Under the Constitution the federal government can unquestionably suspend the privilege of the writ of habeas corpus if the public safety requires it during times of rebellion or invasion. The issue is whether Congress or the president holds this power. Historical perspective on that issue in the context of the Civil War requires a study of the actions of Congress and the president, Lincoln's defense of his suspensions of the writ, and presidential and congressional dealings with and reactions to each other. The relationship between Lincoln and Congress, like the power of suspension, has received limited historical attention, with the only extensive treatment a 1907 article by University of Wisconsin professor George Sellery.
Since the al Qaeda attacks on the World Trade Center and Pentagon on September 11, 2001, the United States has been engaged in an armed conflict that rivals more traditional conflicts in its brutality and carnage. Al Qaeda forces are, in fact, specifically organized to violate the precepts of the law of armed conflict: they do not wear uniforms; they do not carry arms openly; they do not have an organized command structure; and, most importantly, they direct their attacks against noncombatants (that is, innocent civilians). Considering the nature of this adversary, we cannot expect that this conflict will conclude around a negotiating table. Recognizing this threat and moving to preclude further attacks on our homeland.
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. “When suspension operates, what is suspended? In Ex parte Milligan, 1785 the Court asserted that the Writ is not suspended but only the privilege, so that the Writ would issue and the issuing court on its return would determine whether the person applying can proceed, thereby passing on the constitutionality of the suspension and whether the petitioner is within the terms of the suspension.” (pg1). This clause is the only place in the Constitution in which the Great Writ is mentioned, a strange fact in the context of the regard with which the right was held at the time the Constitution was written1771 and stranger in the context of the role the right has come to play in the Supreme Court’s efforts to constitutionalize federal and state criminal procedure.1772 Only the Federal Government and not the States, it has been held obliquely, is limited by the clause.1773 “Article II Section 2 of the U.S. Constitution, the Commander in Chief clause, states that "[t]he President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." o Your personal philosophy, values or ideology about the balance between civil liberties and national security in the context of an unending war on terror.
My personal philosophy on the war on terror is that it will be forever. Sept. 11, 2001: Hijacked airliners crash into both towers of the World Trade Center in New York City and the Pentagon outside Washington. Oct. 7, 2001: The war in Afghanistan begins. May 1, 2011: bin Laden is killed in a U.S. raid on his compound in Pakistan. (Atlanta Journal-Constitution pg.1 [2011]). The chief of command controls weather we, as a country, enforce the habeas corpus and/or when and why it could be suspended. The war on terror has been going on before the beginning of time. Countries, nations, and royalty have been run amongst by others for hundreds of years. It will continue.

References:
Ashford Writing Center
Oren M. Levin-Waldman American Government Bridgepoint Education, Inc http://www.army.mil/professionalWriting/volumes/volume6/may_2008/5_08_4.html http://www.usnews.com/news/history/articles/2009/02/10/revoking-civil-liberties-lincolns-constitutional-dilemma http://www.religioustolerance.org/habeas.htm http://www.law.cornell.edu/wex/commander_in_chief_powers
http://www.springfieldnewssun.com/news/news/world/timeline-key-events-in-the-war-on-terror-1/nMrD7/

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