American National Government Instructor Saundra McDavid February 2, 2015 September 11, 2001 was a day that changed the lives Of the American people forever. Widespread shock, panic, sadness, pain, and despair flooded our nation as a result of the senseless acts of violence inflicted by terrorists. With the nation reeling from the shock and emotions running high, the American people wanted immediate answers and justice. As if a name or a face to tie to this act would somehow ease the pain left in their hearts.
This ind of out cry added extra pressure to former President George W. Bush and his administration to act quickly and give the nation’s people the answers they so desperately craved. In an attempt to have speedy answers Former President Bush went out of his way to go beyond the grasp of the judicial system, which strongly enforces writs of habeas corpus. This strategy utilized by the Bush administration has been a topic of much discussion. The following will examine these questions as well as giving a brief history of habeas corpus.
It will then explore the suspension of habeas corpus in the nited States, give an analysis of the relevancy of habeas corpus, and explain the Supreme Courts interpretation of habeas corpus. Finally, it will evaluate four different perspectives on habeas corpus. First, what is habeas corpus? According to Cornell University Law School, Habeas corpus is a writ that is used to bring an individual who has been convicted of a crime in a state court to the federal court system. Writs of habeas corpus are typically used to review the legality of the person’s arrest, imprisonment, or holding (Cornell University Law School, 2015).
In todays ociety, writs of habeas corpus are mainly used after a conviction in an attempt to prove that the convicted individual was unjustly and illegally detained or imprisoned. Writs of habeas corpus have other uses as well that include immigration/deportation cases, military detentions, military commissions, and any convictions that take place in a military court. So, how did habeas corpus come to be such a common practice? According to an article by Thomas Lewis, “The writ Of habeas corpus is Often called ‘the great writ of liberty. Literally Latin for ‘you have the body,’ this writ ad its origins in the judicial decisions of the English common law system” (Lewis, 2014). This article goes on to describe how in the year 1215 writs became a major component, although not mentioned in Magna Carta, to the requirement that any free man should not be deprived of liberty, no matter what the law of the land said. The actual use of the writ did not come until 1230 and was used as a way for a judge to force people into responding to summonses. Nearly a century later the King’s Court started to issue writs of habeas corpus cum causa, meaning to have the body with cause.
This meant hat sheriffs had to have and be able to show a justifiable cause for holding a prisoner. Lewis says, “By the early seventeenth century, writs were an established way for judges to defend their prerogatives and to ascertain whether sheriffs were holding prisoners contrary to the principles of due process” (Lewis, 2014). In 1620, Charles the 1st and parliament were locked in a dispute about habeas corpus. Essentially the argument came about because the King’s council members were imprisoning some of the wealthiest English men because they refused to loan the King’s Court money to build an army.
This Was really just a cleverly planned out ruse to thwart Parliament, who held all the power to create new taxes. Years later fire prisoners filed a writ of habeas corpus with the Crown claiming to have been falsely imprisoned in accordance to due process, but were ultimately denied released. By the 1641 Parliament passed the Habeas Corpus Act, but as parliament fell apart during a civil war habeas corpus was on a back burner until the 1660s. Up until the end of the 1600s parliament made many revisions of the Habeas Corpus Act. Officially habeas corpus was made a part of England’s statutory law in 1679.
Lewis, 2014). The American colonial courts disseminated the writ and state governments endured to observe habeas corpus rights post independence. The United States constitution did not make any changes to the writ, given that, “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” (Federal Judicial Center, 2015). The Jucdicary Act of 1 789 lead to congress granting federal courts the authority to issue habeas corpus to people in feral custody or who is on trial in a federal court. This changed in 1 807 when the Supreme
Court made note that federal courts were not able to issue corpuses to incarcerated individuals because Congress had not afforded that authority. The Supreme Court met twice after this in 1822 and 1 830 and found that these writs could be issued only before a conviction. At the start of the civil war, with the death toll reaching immeasurable numbers, Abraham Lincoln suspended the writ of habeas corpus in an attempt to silence southern sympathizers. This suspension was initially only for the State Of Maryland, but in September 1 861 Lincoln ordered the suspension for all Union states (Schanberger, 2015).
The suspension of the rit of habeas was one of the most controversial choices that Lincoln made during his term in office. Next, lets look at how habeas corpus applies in today’s society. After the September 11 attacks on the United States, the Presidential Military Order gave the President of the united States the authority to hold any citizens and non-citizens who were suspected of terroristic activities or being affiliated with those individuals who are suspected of terroristic activities. These individuals are called enemy combatants and they are held at Guantanamo Bay, Cuba (Federman, C. 014). In this article, Federman uses a direct quote rom former President Bush, in which Bush states, “If anybody harbors a terrorist, theyre a terrorist. If they fund a terrorist, theyre a terrorist. If they house terrorists, they’re terrorists… If they develop weapons of mass destruction that will be used to terrorize nations, they will be held accountable. ” This quote was from a speech that lead to the signing of the United States Patriot Act, which restricts the writ of habeas corpus for anyone who is considered to be a residential alien; but where does the Supreme Court stand in all this?
The Supreme Court tried six cases between 2004 and 2008 wh ich involved he habeas corpus rights of citizens and non-citizens that were being held by the Executive Branch without justifiable trials. One of these cases was Boumediene v. Bush. In this case, the Supreme Court maintained that the MCA (Military Commissions Act), which essentially blocked anyone is at the time was considered an enemy combatant from utilizing the right to exercise a writ of habeas corpus, was irrevocably an unconstitutional suspension of the writ of habeas corpus (Fallon, 2010).
Lastly, lets examine four different perspectives on this topic, starting with the Commander- in – Chief. According to an article by Matthew Pinsker, President Lincoln redefined presidential war powers. In his time as President he managed to suspend habeas corpus, which in turn meant that anyone who spoke out againt the civil war could lawfully be held and denied their right to request a writ of habeas corpus (Pinsker, 2009). As for constitutional limitations when it comes to the Commander-in-chief, the U. S.
Constitution does not specifically use the phrase ‘War power” nor does it specifically assign any authority other than to call him the commander in chief of the Army and Navy of the United States. However, According to the Rutherford Institute in 007 President Bush issued a “presidential directive” which allows him to take control of the federal government following a “catastrophic emergency. ” Although, this directive is rather vague and openly worded, not going into detail as to what constitutes a catastrophic emergency (The Rutherford Institute, 2015).
Now, what about Congress, where do they stand? “Only Congress has the power to suspend the writ of habeas corpus, either by its own affirmative actions or through an express delegation to the Executive. The Executive does not have the independent authority to suspend the writ” Cornell University Law School, 2015). While congress has not suspended the right of the writ of habeas corpus in regard to the war on terror, many detainees are still being denied that right. In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act. This act contains three important aspects.
One, it only allows a one year statute of limitation on habeas corpus petitions. Two, it states that unless a U. S Court of Appeals has given approval, the petitioner cannot file a habeas corpus petition. Three, habeas relief is available only when the state’s court determination was contrary to, or involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States” (Cornell University Law School, 2015). This leads to Congress and how they protect our civil liberties. The Patriot Act is one way that Congress is protecting the nation’s civil liberties.
This act states the need for more cooperation within all the levels of security as well as boarder powers for all law enforcement officials. This act allowed Police and other departments to have a wider range when it comes to authority and encouraged them to share nformation amongst themselves. The ultimate goal is a safer America in times Of turmoil (Annenberg Classroom, 2015). There are those who feel that acts such as the Patriot Act are overkill and that the government is exhausting resources when they should be using that money elsewhere. eel that it is our leader’s duties to exhaust whatever resources necessary to protect us from terrorists. We cannot allow the events of September 11, 2001 to happen again. This nation’s safety and freedom should be and should always remain a top priority. In conclusion, restricting the right of habeas corpus for the purposes of protecting this nation had been a much debates topic.. In this paper I have given a brief history of habeas corpus, I have explored the suspension of habeas corpus, and explained the Supreme Court’s interpretation of habeas corpus.
I have also analyzed the relevancy of habeas corpus and the different perspectives on habeas corpus. believe it is safe to say that this nation’s safety and freedom is the most important issue there is and combating against terrorism at all costs, is completely justifiable.