“Do we fear terrorism so much that we throw out our Constitution, and are we unwilling and afraid to debate our Constitution? ” -Rand Paul We are living in a world that has been overwhelmed with war; a war that many of us will never have to physically fight but one that challenges us mentally every day. A war of terror and the constant battle against it. We have been overwhelmed with events that have led us to feel safety may be unattainable and at some point, when we are no longer able to protect ourselves physically, we have to rely on our legal system to protect us from evil in the world.
It is sometimes hard to believe that anyone who acts against us would have legal rights at all but we live in a country that promotes freedom and allows everyone to be innocent until proven guilty. In the United States we are provided civil liberties that protect us, but can those rights get in the way of stopping an enemy and protect the wrong person? In the following paragraphs I will discuss in detail one legal action that was created to protect you and me, but in recent years has raised questions that challenge us to see that protection differently and maybe allow you to answer the question Rand Paul has asked.
Habeas Corpus is an English common law that has existed for centuries as a “fix” of sorts for a legal system to protect a person being kept in custody. When used correctly, it essentially gives that person, or someone directly representing that person, the right to ask why they are being restrained and kept from other common laws and protects them from unlawful imprisonment. If held for reasons that cannot be explained then the law allows them to be released. This right can be suspended for various reasons but was put in place to allow for a balanced court and containment system. (http://legal-dictionary. hefreedictionary. com/Habeas+Corpus).
In modern America, it is easy to relate Habeas Corpus to our Sixth Amendment rights that state, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense. (http://www. usconstitution. net) For centuries, there have been questions asked about the depth of the right to Habeas Corpus as explained in the constitution but we cannot fully understand it is intended and thorough meaning until we explain its history that lies in the early English legal system.
The term Habeas corpus translates from directly from Latin “You may have the body. ” It is commonly thought that Habeas Corpus was first used in the early 1300’s while King Edward I was in power although previous monarchs exhibit the use of similar procedures dating back the 12th century.
William Blackstone explains the legal action by saying, “The King is at all times entitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted. ” While this action had been used for centuries before, the specifics of it weren’t officially defined until the Habeas Corpus Act of 1679 as an Act of the Parliament of England. Since it is definition has been established, Habeas Corpus allows a prisoner or a third party to issue the legal action and petition a superior court against unlawful detention.
If the individual is being held unlawfully, that prisoner can be released by the court or as we may explain it today, be offered bail. ( http://www. constitution. org) While Habeas Corpus is most commonly related to English history and has since evolved to its place in American History, it also has been molded for other modern legal systems in Australia, Canada, Germany, India, Ireland, Malaysia, New Zealand, The Philippines, Scotland, and Spain. Each of these countries has altered the original definition to suit their society and legal system but they align somewhat directly.
On more than one occasion in United States history, this legal action has been suspended, allowing the legal system to lift the right from the people for the sake of greater safety. Within the United States constitution, specifically Article One, Section 9, Clause 2, it is explained 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. ” (www. usconstitution. net) In earlier American history, suspension has occurred often during times of war.
During the Civil War President Abraham Lincoln chose to suspend the writ of habeas corpus because he heard mobsters had intended to destroy railroad tracks that connected Philadelphia and Annapolis. These lines were essential for the Union during that war. What is interesting about this instance that we don’t always see is that the president did not lift the right across the board in all legal situations. It was specifically issued to those directly impacting those involved with the destruction of the rail lines. Less than a year after issuing the order, Lincoln ended the lift and allowed most prisoners to be released.
Shortly after the Civil War, unrest settled upon the people of the United States and multiple groups were created in the south to fight against the rebuilding of America, Reconstruction. The most notable of these groups was the Ku Klux Klan. To protect the people based on the clause stated in the Constitution, Congress passed the Force Acts. Within them, the president was given the ability to deny habeas corpus if there was the thought that individuals were acting against federal authority and could not be stopped by ordinary means because of their serious violent nature.
Directly following the attacks on Pearl Harbor in 1942, habeas corpus was suspended yet again. Martial law was declared because of the nature of the attacks on the United States. It was suspended to protect the American people from individuals who may have been secretly working to allow the attacks in Pearl Harbor to have happened or caused a potential threat again the United States. Nearly two years later, common law was restored and the suspension ended. Once the war ended though, the right to habeas corpus was questioned by the U. S.
Supreme Court after multiple German prisoners who were being held in American-occupied German attempted to apply it to their detention. It was later determined that the American court system had no jurisdiction over those individuals who were imprisoned outside the United States and never crossed onto U. S. soil. This decision plays a pivotal role in the future of habeas corpus and its use during times of modern warfare, more specifically the current War on Terror. On April 19th, 1995 a bomb was detonated that completely destroyed the Alfred P. Murrah Federal Building in Oklahoma City.
This attack killed 168 people and injured hundreds more. The bomb caused millions of dollars’ worth or damaged and remained the worst domestic terrorist act until September 11, 2001. After the Oklahoma city bombing, President Clinton and Congress passed and signed to law an act that was created to “deter terrorism, provide justice for victims, provide for an effective death penalty, and for other purposes. ” the Antiterrorism and Effective Death Penalty Act of 1996 limited the use of habeas corpus and the power of federal judges to relieve prisoners.
Six years after the bombing in Oklahoma, attacks were made on the U. S. soil on a day that undeniably changed the path of American history forever. The worst terrorist attack in U. S. history claimed nearly 3,000 lives when 4 passenger jets were hijacked by terrorist for the Middle East and crashed. Soon after the attacks, President George W. Bush spoke to the American people. He ended his historical speech saying, “Fellow citizens, we’ll meet violence with patient justice, assured of the rightness of our cause and confident of the victories to come.
In all that lies before us, may God grant us wisdom, and may he watch over the United States of America. ” Because of these attacks, the way we go about approaching justice had to be altered. The current legal system did not necessarily provide the best means to handling the situations we were being faced with. Our world changed and we were forced to change with it. (http://georgewbush-whitehouse. archives. gov) Shortly after September 11th, President Bush issued the Presidential military order that allowed the “Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism.
This would allow the U. S. government to indefinitely detain non-citizens with suspected connections to terrorism or terrorists, labeled enemy combatants, without access to the rights available by the U. S. constitution including habeas corpus. The U. S. Supreme Court confirmed that the right the basic principal of habeas corpus would not be taken from citizens of the United States. In January following the terrorist attacks of 2001, the Bush Administration established the highly criticized detention camp, Guantanamo Bay located in Cuba (http://www. thepoliticalguide. com/Issues/Guantanamo_Bay/).
This facility was created to detain individuals suspected of participation in the global war on terror. Similar to the ruling made by the U. S. Supreme Court after WWII, Guantanamo, or GTMO, allows the U. S. to essential play by a different set of rules. Bush set up a military commission that could try detainees at GTMO. In 2006 Congress passed the Department of Defense Appropriations Act which states that no court, justice, or judge has jurisdiction at GTMO. This basically strips all captives of their ability to request habeas corpus or have access to any other rights that U. S. itizens would have in any court of the United States. Because the lines drawn in the legal system have become so blurry over the past few years, the U. S. Government, the Commander in Chief more specifically, has found itself under intense scrutiny. There are so many sides to the debate on the War on Terror that it would impossible to discuss in its entirety in this short essay. The role of the President, Congress, our military, and the Supreme Court have come to question but it seems as though the clarity that is being sought after only leads to more questions and uncertainty.
The media has effected this dramatically with polarized politics that force the citizens of the United States to choose a side. I feel as though fear has divided our nation. Not the fear of being attacked, but the fear of the unknown. It is easy to move passed fear when you can pinpoint the cause of it, but we live in a time where people we do not know want our lives to end and we are allowing the government that we support to bring those people to justice. The question is, how are they going about seeking that justice and many will ask if we should even ask.
Do we turn a blind eye and allow the system to take care of those who act against us, or is that system what is creating the problem in the first place. In a sense it’s like asking the question, “which came first, the chicken or the egg? ” Are we reacting to terrorism or is terrorism the cause of our actions? Recently we have been challenged to ask these questions because of the details surround the Boston Bombing that took place only a few weeks ago. For the first time in recent history, a legal U. S. citizen acted with intentions similar and possibly directly linked with those who we would place and try at GTMO.
The problem is, while this individual is a U. S. citizen, should he be tried as one? For a few days following the attacks, it was questions whether Dzhokhar Tsarnaev, the younger of the two attackers and currently only living suspect directly linked with the bombing, should be treated as a U. S. citizen or an enemy combatant like I discussed earlier. With limited rights, it would make his case difficult but where do we draw the line between using the law to protect us and using the law against others. During the time that these decisions were being made, Tsarnaev did, like many others held captive, attempt to use right to habeas corpus.
It was denied after the decision was made to try him under common law with overwhelming evidence proving his association with the attacks. While details are still being brought out daily, I have to believe that our government and legal system are capable of handling this situation in a way that best protects the rights of the rest of us. I cannot explain which came first, the chicken or the egg, but I do know that our world is complicated beyond belief and while we can attempt to use reason and logic to find the best possible outcome, it is that very ability that allows many to hate us.
Our rights and freedom is what seems to be causing the conflict and that is something our country, I believe, will never stop fighting for. We fear what we cannot explain. With education of the tools have been put in place we can protect ourselves and others. We need to ask the difficult questions so we can better understand how to find the best possible solution in times like these. We must to use our freedoms to debate, challenge, and change our future not hide behind them and let someone else change it for us.
Courtney from Study Moose
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