Habeas Corpus in the Context of the War on Terror
Abstract
When contemplating of exercising civil rights liberties in a war-like environment, the challenge always arises between distinguishing genuine petitioners from criminals. In this case, criminals will camouflage from genuine petitioners making it hard to exercise the virtue of civil humanitarian liberty. This article attempts to access the Habeas Corpus statute and how the ethics behind its implementation is challenged severely by genuine intentions to promote safety concerns. The commencing paper is divided into three core sections. Firstly, the background of Habeas corpus where the idea was borrowed from and historical political situations which challenged the legitimacy of Habeas Corpus; secondly, the current situation, the involvement of Habeas Corpus in terror activities and the responsive actions by the executive, the courts, civil groups, academic and media. The third section attempts to provide a coherent recommendation point, which in this case, will show on how to initiate collective actions in balancing between demands of the constitutions (safety), and bill of rights (democracy).
Background of Habeas Corpus
Chiefly, Habeas Corpus attempts to safeguard the interests of the person arrested. The core attribution is centered on the ability of extending substantial democratic rights of citizens to the arrested people. Research has attempted to examine the importance of Habeas Corpus in handling political victims. Gregory (2013, p. 56) argues that the thesis behind Habeas Corpus is based on English democracy, which was principally interested in protecting the rights of civilians. As the statute is centered, there is a close relation between the victim freedom and state actions. In this case, the statutes attempts to bar arbitrary state action to any victim. The power behind the statute is the writ, which is as well known as great writ, or the driving force of the statute. The writ operates with a court order, which in the circumstance, demands a prisoner be taken before a court before a given time, or in an event of risk, the court requires the custodian to present lawful authority to detain the prisoner. Again, when it comes to prisoner alleged for terror, research has been directed whether the statute actually observes whether the victim is being held incommunicado, without access to resources or lawyers. However, due to the statute adverse weakness, it is normal to experience temporarily suspension. For instance, Abraham Lincoln suspended the statute in order, to necessitate the military response to demands of the civil war (Dueholm, 2008).
Habeas Corpus contribution towards terror Minimization
IDEA (2009, p.121) attempts to presents pros and cons of Habeas Corpus especially in managing terrorism. Primarily, the September 11th, 2001 attack grounded the development of robust ideologies all centered in reducing terrorism. Even though policies generated by then looked on a broader use of militarism in apprehending terrorism, the same page argues, restrictions to habeas corpus undermine the war against terror and put our national further at risk (quoted speech from George W. Bush US president 2001-2008). In this case, instituting judicially based investigation enabled security systems to learn inherently about the victim welfare, their war ideologies and inert policies, ambitions, strategies and execution being planned by the adversaries. So, it is prudent to argue that the statute was vital in directing the war against terrorism from a brutal based apprehension ‘where most terrorist died before offering vital information’ to a dynamic investigation mechanism ‘one which revealed crucial information about the victim’.
U.S. Supreme Court’s interpretation of the right of habeas corpus (the views of the five Justices)
Tate et al, (2009, p 162) argues that the government dogma of abstention constrained the judicially from issuing the great writ. Another eminent contention was that the states argued that the federal should seize issuing arbitrary writ in circumstances at which the accused had directly circumvented the state defendant purposefully (Tate et al, 2009, p 162). Both of these situations damaged the proper implementation of habeas corpus comprehensively. To manage this, the Supreme Court assumed full authority in providing consensus point. In particular, Justice Brennan presented a letter attempting to show how rarely federal courts undermined the authority of habeas corpus. Therefore, for terror incidences the Supreme Court assumed full responsibility in arbitrating petitions. For instance, Knowland (2012) presented an article how the Supreme Court acted alongside Habaes Corpus. The Supreme Court is mentored by the constitution which states, the privilege of the great writ….shall not be suspended…., unless when public safety is put into attention. In this case, the perspectives of the four Judge Bench look boldly against the law to interest of the state and safety concerns. Taking on these accounts, the instigating discussion will attempt to analyze the perspective of the four Judges courtesy of Justice Anthony Kennedy, Justice Souter, Justice Scalia and Justice Roberts. The discussion will appoint Boumediene v. Bush case 553 U.S 723 (2008) which was made on a civilian court. Lakhdar Boumediene was naturalized citizen of Bosnia, who by then, was being held in Guantanamo Bay prison on detention grounds.
Perspectives
The Justice Bench
Justice Kennedy based his opinion on the ethics of constitutionally offered by habeas corpus review. However, the knowledge that Guantanamo bay is under Cuba jurisdiction poised an eminent danger to the commencing judgment. In his judgment, Kennedy argued that in an event of detention, the substitute should offer the prisoner an equivalent opportunity to exercise democratic rights by application and interpreting the relevant law. Again, Kennedy presented a counter argument certifying that the accused, through the appellate, must be able to examine the satisfactoriness of government substantial evidence incriminating him or her. Kennedy ruling directly affected the prevalence of two primary laws, this were the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 and Military Commissions Act (MCA) of 2006. These laws were considered not in favor of Habeas Corpus, thus ruling of Kennedy was not applicable if the courts continued using the power behind these two laws. For instance, AEDPA legitimized the occurrence of detention basing on the satisfactory level of the ruling court; at this point Habeas Corpus rooted petition would be ignored. Similarly, the MCA puts on hold the application of petition to detainees who not tried on any US backed jurisdictions. Grounding on the two shortcomings Habeas Corpus could be challenged adversely when it comes to attending to terror suspects.
Conversely, the attention presented by three justices should be brought into close attention because of their ability to access various situations. For instance, Justice Souter attempted to completely dismiss the application of Habeas Corpus regarding persons detained in Guantanamo, in his wording; he states that there should be a constitutional backed jurisdiction. However, Souter signified that usage of habeas statute was outright parallel with application of writ of habeas corpus. Souter was joined by Justices Breyer and Ginsburg.
Justice Scalia on the other hand heavily defended the Supreme Court against statements presented by dissents, commission of terrorist acts and critics. His ruling was borrowed heavily on Detainee Treatment act which provided a parallel protection of habeas corpus guarantees. Again, it is scholarly prudent to acknowledge that no jurisdiction was intended to go against the power of the writ. His judgment was based on the knowledge of ethics, arguing it was technically difficult to determine a flaw petitioner from righteous one. The chief Justice Robert joined Justice Scalia dissent, arguing, that in war against terror the Judiciary heavily since prevail more on human democratic rights than vital national concerns. That is why for national security is was essential to overlook beyond the suspension clause.
Similarly, Justice Robert joins Justice Scalia arguing after all, detainees were accorded normal lives inside Guantanamo prison, which in this case presented an equal substitute of clause of rights of moot, and in any case claims presented by activist lacked coherent justification of violation. Justice Robert intended to reduce the association of Habeas Corpus as an avenue, where detainees will ground gross violation of rights
Academic Response
In an article published by Norako (2009) it is apparent that the academic community looks at the evolutions the writ has been taken, and recently, how the writ has been challenged by foreign based prisons and political- judicial differences. One will not fail to notice how the Boumediene v. Bush case is applied as a close learning example. Close concern of the academic community examines on the necessity of suspension of Habeas Corpus, or in an event of suspension, how does the military replacement respond. However, it is apparent that the academic community to some extent supports the application of Habeas Corpus, citing it paves way for proper understanding of terror activities compared to militant actions.
Media Response
Any scholar will be quick to notice the heavily polarized media influence, which in most cases is centered in criticizing the government suspensions of Habeas Corpus. Worthington (2008) a media correspondent, attempts to compare the ruling of Rasul v. Bush and the current station, and significantly stating that the statute was characterized with inefficiencies. Worthington comments that the ruling in that particular case attempted to show prisoners had statutory habeas rights. What is notable is the in media response is the nature of wording which can be argued as one based on incitement. The media will quest to present contentious cases, and in most cases, the suspect could be high profile criminals.
The role of the President as Commander-in-Chief
Through the constitution the US President is to primary address security concerns of the American people, and tackling terrorism is a chief role, which cannot be debated in any place. The president is at power to suspend the application of Habeas Corpus, if at any event the country is at significant risk of terror. For instance, in November 13th, 2001, President George Bush signed the executive order as a supplementary military tribunal to try foreigners charged with terror activities.
The role of Congress in determining when habeas corpus can be suspended
The congress is chiefly responsible in instituting necessary laws; for instance AEDPA and MCA, structuring them to meet requirements of habeas Corpus statute. According to an article published by Cornell University Law School (2013), it is clear that only the congress has the power to suspend habeas corpus by application of substantial affirmative actions. The congress expresses a delegation to the executive stating the necessity to suspend the statute.
Recommendation
In any event the Supreme Court is mandated in protecting the civil liberties of the American people. Its role is evenly distributed as follows; firstly, protection the US constitution. For instance, Article VI assures the rights and liberties of citizens are primarily secure. Secondly, the Supreme Court is chiefly responsible in protecting the people of United States Bill of Rights, this includes protection against unreasonable, unwarranted searches, seizures, provisions and detentions. Thirdly, the Supreme Court is principally responsible in initiating a judicial review one interested in examining political or judicial challenges, and timely, providing judgments based on best interests. Taking to account these recommendations, the challenge crops on the ability of the Supreme Court to balance between protection US constitution, and secondly, the bill of rights. Habeas corpus is a largely based on the two, however, as this discussion has unveiled, the statute is grounded on procedural remedy, and in any case, it does not protect other rights; for instance, the right to entitlement to fair trial. In this case, the congress suspends the statute temporarily until security objectives are met. It is essential to note that; through the application of Habeas Corpus federal power remains divided between political initiatives and the Judiciary. However, it is necessary to advise the Supreme Court to execute Judgments depending on the political health of a country at any particular time. In this calling, the Supreme Court should categorize security perimeters based on the nature of foreign policy prevailing at the time. This is in line with Article I, Section 9 of the US constitution, which explains the imperativeness of national security questions, and they should be adhered over democratic concerns advocated by Habeas Corpus (Hafetz, 2011).
Conclusion
This document has attempted to compare the advance in-application of Habeas Corpus based to provide solutions to war-time and terror problems. The discussion has appointed the political goals of providing security and against judicial understanding of the moral good of Habeas Corpus stating the dilemma is resulted in balancing. However, the document called on the collective responsibility of Supreme Court in balancing between, protection of the constitution where security is entrenched and the primary bill of rights, where democratic freedom courtesy of Habeas Corpus is recognized.
References
Cornell University Law School (November 4th,2013). Habeas corpus. Retrieved Jan 4th,2014
from http://www.law.cornell.edu/wex/habeas_corpus.
Dueholm, J. (2008). Corpus: An Historical and Constitutional Analysis. Retrieved Jan 4th, 2014
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Gregory, A. (2013). The Power of Habeas Corpus in America. Cambridge: Cambridge
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Hafetz, J. (2011). Habeas corpus after 9/11: confronting America’s new global detention system,
Retrieved January 4th, 2014 from http://www.gvpt.umd.edu/lpbr/subpages/reviews/King-Hoffman-Hafetz1211.htm.
IDEA. (2009).The Debatabase Book: A Must-have Guide for Successful Debate. Washington:
IDEA, 121-122.
Knowland, D. (June 13th, 2012). US Supreme Court rejects appeals by Guantanamo detainees
and Jose Padila. Retrieved Jan 4th, 2014 from http://www.wsws.org/en/articles/2012/06/cour-j13.html.
Norako, J. (2009). Accuracy of Fariness: The Meaning of Habeas Corpus after Boumediene v.
Bush and Its implications on Alien Removal Orders. New York: The American University Washington College of Law
Tate, C., Mersky, R., & Hartman, G. (2009). Landmark Supreme Court Cases: The Most
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mean? Retrieved Jan 4th, 2014 from http://www.andyworthington.co.uk/2008/06/13/the-supreme-courts-guantanamo-ruling-what-does-it-mean/.
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