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Civil Liberties, Habeas Corpus, and the War on Terror Essay

Civil liberties, Habeas Corpus, and the War on Terror have been the forefront of Congress since 2001 with the terrorist attack against The United States. Although there have been many attacks before, none have hit the American people in such a manner to question whether our civil liberties are at stake. As a member of the Armed Forces I swore to support and defend the constitution of the United States against all enemies both foreign and domestic at all cost. A sense of pride, loyalty and commitment engulfs me when I hear the words for equal justice and liberty for all when it comes to erving my country that practices and honors American citizen’s civil liberties.

Unfortunately, the liberties that most Americans take for granted; are the same liberties that other people from different realms of the world come to obtain. The War on Terror would impact lives deeply from this point on and the civil liberties of every American citizen and noncitizen would change the history of what we were founded on. Former President George W. Bush and his administration set out to capture those thought to be responsible for the terrorist attacks on American soil. In addition Former President

Bush and his administration went to great lengths to go beyond the reach of the judicial system which enforces the writ of Habeas Corpus. These actions have been highly debated across the nation. Habeas Corpus original meaning can be best defined as a demand by the courts to which a government agency produces a prisoner and demonstrates that they have the proper grounds in which to hold them. “It is the process by which Common Law countries ensure the second freedom mentioned in the U. S. Declaration of Independence Liberty and the right not to be imprisoned arbitrarily in its most fundamental form” (MacMillan, K, 2010).

Habeas Corpus was written into the first article of the constitution reading as such: “The privilege of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it. No bill of attainder or ex post facto Law shall be passed. “(Article 1, Section 9, U. S. Constitution). Furthermore, the Habeas Corpus in the U. S. Constitution guarantees the people the right to require the government to justify detaining or imprisoning, the right not to be outlawed without fair trial, freedom from laws passed after fact.

So the questions to ponder about re: Did the tragedy of September 11th, justify the actions of the Former President? Is it fair that prisoners were and still are locked away, and stripped of their basic rights under the writ of Habeas Corpus? And is the “Land of the Free and the Home of the Brave” such a great nation, that is so powerful that the laws that were put in place to protect civil freedoms and liberties, do not apply to us? Jonathan Turley, professor of constitutional law at George Washington University stated, “What, really, a time of shame this is for the American system. What the Congress did and what he president signed today essentially revokes over 200 years of American principles and values. ” I agree whole heartedly about this comment.

The President’s decision to deny the detainees Prisoner of War (POW) status remains a point of conflict, especially overseas with some arguing that it is based on an inaccurate interpretation of the Geneva Convention for the Treatment of Prisoners of War, which the assert requires that all combatants captured on the battlefield are entitled to be treated as POWs until an independent tribunal has determined otherwise. One notable date in military history is on October 17, 2006, when President Bush igned a law suspending the right of habeas corpus to persons “determined by the United States” to be an “enemy combatant” in the Global War on Terror. President Bush’s action drew severe criticism, mainly for the law’s failure to specifically designate who in the United States will determine who is and who is not an enemy combatant. This however was not the first time in the history of the U. S. Constitution that it’s guaranteed right to Habeas Corpus has been suspended by an action of the President of the United States. In earlier years of the U. S. Civil War, President Abraham Lincoln suspended writs of habeas corpus.

Both presidents based their action on the dangers of war, and both presidents faced sharp criticism for carrying out what many believed to be an attack on the Constitution. President Bush suspended writs of habeas corpus through his support and signed into law the Military Commissions Act of 2006. This bill granted the President of the United States almost unlimited authority in establishing and conducting military commissions to try persons held by the U. S. in the Global War on Terrorism.

In addition, the Act suspends the right of “unlawful enemy combatants” to present, or to have presented in heir behalf, writs of habeas corpus. “Members of volunteer corps, militias, and organized resistance forces that are not part of the Armed Forces are entitled to POW status if they meet the criteria specified in the treaty. Groups that do not meet the standards are not entitled to POW status, and their members who commit aggressive acts may be treated as civilians under the Geneva Convention Relative to the Protection of Civilian Persons in Time of War”( Terrorism, the Laws of War, and the Constitution Policy Archive ).

These “unlawful combatants” are not afforded immunity for their ostile acts. [A petitioner must be treated as a prisoner of war until a competent tribunal has decided otherwise, and that a military commission may not proceed with their trial. Although 250 detainees (including three children under the age of 16), 13 have been released from the detention facilities at the U. S. Naval Station in Guantanamo Bay, Cuba, and some detainees are being rewarded for cooperation with better living conditions while the status and treatment of detainees who remain in custody continue to be a source of contention] (“Enemy Combatants” Journal, Wuerth).

Although the President has inherent power under the Commander-in-Chief Clause Article II to take measures he deems appropriate during wartime, he uses The law of war principle. President Bush as well as past presidents having been using this to detain, convict or, “(We understand Congress’ grant of authority for the use of ‘necessary and appropriate force’ to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law of war principles. “); id. at 548-49 (Souter, J. ) Combat Status Review Tribunals (CSRT), which were established by the Defense

Department, were put into place for the sole purpose of hearing the cases of the detainees. However, there are many flaws in having such a system determine the legality of one’s detention. The Supreme Court recognizes that the CSRT process for hearing cases puts many “constraints upon the detainee’s ability to rebut the factual basis for the Government’s assertion that he is an enemy combatant” (Boumediene v. Bush). Some flaws the court points out is that the CSRT assumes that the detainees are guilty before the trial has even started and it is all up to the detainee to prove that they are in fact, not enemy combatants.

This goes against the typical US court proceedings when all suspects are presumed innocent until proven otherwise. The bias shown by the members of the CSRT puts the detainees at a disadvantage. Furthermore, while many of the detainees have a limited knowledge of English, they are not given the specifics as to what crimes they are being charged with because the information may be classified. Additionally, with no textual evidence, the detainees often go into the CSRT board empty handed and without legal representation.

Not only do the proceedings of the CSRT seem nfair, it also seems to be designed to intentionally make it difficult for detainees to secure their freedom. In closing, the Founding Fathers placed the Suspension Clause in Article 1, Section 9 in the Constitution. This is important because if the founding fathers specifically intended to apply the Suspension Clause to US citizens only, then they would have placed it in the Bill of Rights which are specifically reserved for the people to protect them against the government. Furthermore, the rest of the clauses in Article 1, Section 9 specifically state what types of activities that the Legislative Branch cannot do.

Hence, the Suspension Clause, because of its placement, was intended to be a limitation upon the abuse of power by the Legislative Branch. Lastly, the principle of separation of powers came from the idea that each branch would be able to check one another (Checks and Balances). The Military Commissions Act (MCA) of 2006 was an amendment to the Detainee Treatment Act (DTA) which did not allow the Federal Courts to hear writs of habeas corpus from the detainees at Guantanamo Bay.

The US Supreme Court decided that because the DTA was an inadequate substitution for habeas corpus, then the MCA annot strip away Federal courts jurisdiction to hear habeas corpus cases. The Military Commission Act of 2006 effectively stops the Judiciary Branch from doing its job therefore making the act or Bill unconstitutional. . So as I read and watch videos to acquire information I ask myself, Are not constitutionally correct? Detainees, Enemy Combatants, or POW should have the same fair and equal treatment whether it is on our soil or their soil. Presidential power, Congress and the Supreme Court should not rule on emotions, but on the principles that guide us as the “Greatest and most Powerful Nation in the world.


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