In this paper I will show that habeas corpus does protect prisoners from being unlawfully detained, whether they are on foreign soil or not. Habeas corpus is a term that “represents an important right granted to individuals in America. Basically, a writ of habeas corpus is a judicial mandate requiring that a prisoner be brought before the court to determine whether the government has the right to continue detaining them. The individual being held or their representative can petition the court for such a writ” (Kelly, 2012).
Article one of the U. S. Constitution states that the right habeas corpus can only be suspended in cases of invasion because the public safety may require it or a rebellion. Habeas corpus precedes Magna Carta in 1215 and is predominately of Anglo-Saxon common law origin. In fact, the Magna Carta indirectly mentions Habeas Corpus as the unwritten common law of the land and is specifically recognized by Magna Carta. From Magna Carta the exact quote is: “… o free man shall be taken or imprisoned or exiled or in any way destroyed except by the lawful judgment of their peers or by the law of the land. At the time of Magna Carta, the right of a prisoner to file a habeas corpus petition with the court was settled practice and the law of the land. Originally Habeas corpus “was the prerogative writ of the King and his courts, the passage of hundreds of years time has permitted it to evolve into a prerogative writ initiated by the person restrained, or someone acting in his interest rather than by the King or his courts” (Robertson, 2011).
The Essay on Civil Liberties, Habeas Corpus, and the War on Terror 2
... the Magna Carta in 1215. English tradition of habeas corpus is as follows: “While habeas corpus originally was the prerogative writ of the King and his courts, the ... interest rather than by the King or his court. Magna Carta obliquely makes reference to habeas corpus through express reference to “the law of the ...
When the term Habeas corpus first came into use in medieval England it was basically a subpoena that a king or official could impose to force someone to appear and testify against another person, but when the Habeas Corpus Act took affect in England in 1679 it was understood to be a civil right that protected the common people from being arrested without any charges being placed against them. Even though the U. S. Constitution put into place the writ of habeas corpus a president and congress can suspend that writ in times of war, which was first done by President Abraham Lincoln in 1862.
Shortly after the start of the American Civil War President Lincoln unofficially suspended the writ of habeas corpus for all military related cases, which was in response to riots and local militias at the early stages of the civil war. President Lincoln believed that any prisoners that were captured during the American Civil War did not have the right to question why they were being held captive. In fact on September 24th, 1862 President Lincoln issued a proclamation that suspended the right to writs of habeas corpus nationwide.
In this proclamation he stated “Now, therefore, be it ordered, first, that during the existing insurrection and as a necessary measure for suppressing the same, all Rebels and Insurgents, their aiders and abettors within the United States” (Longley, 2010).
In this proclamation he even went on to state that “all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice, affording aid and comfort to Rebels against the authority of United States, shall be subject to martial law and liable to trial and punishment by Courts Martial or Military Commission” (Longley, 2010).
During the American Civil War in 1863 congress also suspended the writ of habeas corpus so that the Union army could hold accused people temporarily until they went to trial in a civilian court. But, “after the war ended in 1866, the American Supreme Court restored the right to habeas corpus throughout the country. Military trials were reserved only for military personnel, while civilian courts were restored with the right to receive habeas corpus petitions” (“Habeas corpus historical,” 2007).
Another important suspension of the writ of habeas corpus happened in 2006 when President Bush signed into law the Military Commission Act which suspended the right to writs of habeas corpus to persons deemed by the United States to be an enemy combatant in the Global War on terror. When the president signed the Military Commission Act in 2006 it came under great criticism by congress and he basically cast away the Constitution and the principle of habeas corpus which protects against unlawful detainment.
The Essay on Habeas Corpus 2
... a court order of habeas corpus, in state court only. In September 1863, President Lincoln suspended the habeas corpus right throughout the whole United States. This pertained to military, naval, ... Chief of the United States military during the time in war. President Lincoln suspended the rights of habeas corpus to United States citizens. Bush signed the ...
The MCA eliminated the due habeas corpus process right for prisoners being detained at Guantanamo Bay and elsewhere. This act also gave the president the right to declare on their own who is and is not any enemy combatant and decide who should/should not be held indefinitely without being charged of a crime. In 2008 the Supreme Court and A five-justice majority in Boumediene v. Bush held that the MCA of 2006 violated the U. S. Constitution right of the detainees at the Guantanamo Bay, Cuba military facility to have a meaningful habeas corpus review by federal civilian judges. According to the Court, the Constitution prevents the government from barring detainees from rigorous habeas review and instead substituting military fact-finding followed only by a limited right of review in the U. S. Court of Appeals for the District of Columbia Circuit” (Kent, 2008).
But in a very unforeseen circumstance the Supreme Court of the United States “did not decide which specific habeas review procedures are required by the Constitution, but instead sent the cases back to the federal district court to litigate that and related issues.
The four dissenting justices would have upheld the constitutionality of the MCA’s withdrawal of habeas jurisdiction” (Kent, 2008).
Justice Anthony M Kennedy, writing for the majority, said “the truncated review procedure provided by a previous law, the Detainee Treatment Act of 2005, “falls short of being a constitutionally adequate substitute” because it failed to offer “the fundamental procedural protections of habeas corpus” (Greenhouse, 2008).
Justice Anthony also declared: “The laws and Constitution are designed to survive, and remain in force, in extraordinary times” (Greenhouse, 2008).
Finally in 2008 in the Boumediene v. Bush case “a five-justice majority of the U. S. Supreme Court declared that habeas corpus jurisdiction extended beyond the shores of the United States. This, it said, was a matter of American constitutional law” (Randolph, 2012).
The Essay on Federal Vs State Courts
The United States is at the forefront of modern democracy. Its unique three branched system allows the government to operate under a quasi-idealistic form of checks and balances. As outlined by the U.S. Constitution, the judicial branch of government serves as the interpreter of the law and is “one of the most sophisticated judicial systems in the world.”1 This complexity is a product of balance ...
Since the U. S. Supreme court made the declaration hundreds of Guantanamo Bay detainees have been filing habeas corpus cases and even though many cases have already been heard, hundreds more detainees are waiting for their habeas corpus cases to be heard in District court and other courts around the United States. When the U.
S. Supreme Court made the decision to extend jurisdiction beyond the United States it forced new laws to be made, judicial standards to be declared, and new precedents to be set. In fact, now soldiers who capture enemy combatants in the field may have to comply with new judicially prescribed requirements. “Questioning of prisoners may have to adhere to some sort of judicial norm. Exclusionary rules may be enforced. Modes of questioning may not exceed proper bounds as judges see them. Evidence may have to be handled and preserved in certain judicially approved ways” (Randolph, 2012).
In recent news President Barack Obama’s administration planned on closing the prison at Guantanamo Bay, but the plan was put on hold after U. S. District Judge John Bates ruled “that at least some of the long-term prisoners at the Bagram Air Base in Afghanistan are entitled to the same legal rights as the Guantanamo detainees” (Savage, Barnes & Meyer, 2009) because the prisoners at Bargam Air base in Afghanistan were shipped there from outside of Afghanistan and are almost alike in every legal term to the prisoners at Guantanamo Bay.
As of yet Prisoners at Bargam Air Base in Afghanistan still do not have the right to file a habeas corpus petition and the closing of Guantanamo Bay is on hold until the dispute over the prisoners in Afghanistan is settled. In conclusion I have proven that due to the U. S. Supreme ruling in 2008 detainees outside the United States can file a habeas corpus case as well as any prisoner within the United States. It is a prisoner’s given right to question whether or not they are being illegally detained and have their petition heard.
The U. S. Constitution put into place the writ of habeas corpus and it is the job of any court in the U. S. to respect that writ and give prisoners their time in court. References: Greenhouse, L. (2008, June 13).
Justices, 5-4, back detainee appeals for guantanamo. . Retrieved from http://www. nytimes. com/2008/06/13/washington/13scotus. html? Kelly, M. (2012).
The Essay on The Treatment of Guantanamo Bay detainees and Human rights. Discuss
This essay shall consider whether violation of human rights of Guantanamo Bay detainees is justifiable given the recent developments of terrorism after 9/11. By human rights, we shall consider these to be those under the most recent Geneva Convention; and abuse to mean mental and physical torture and actions which go against the will of the individual. It will be argued that human rights abuses on ...
About. com. Retrieved from http://americanhistory. about. com/od/americanhistoryterms/g/d_habeascorpus. htm
