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Executive Power Concerning Essay

While the President has power under his right as the Commander- in- Chief, he is still subject to the interpretation of what is legally right based upon the laws of the Constitution. Such laws allow him the right to detain and try prisoners of war/ enemy combatants based upon military statutes and political authorizations. U.S. citizens hold certain civil liberties, one in particular being the right to know the charges brought against them in the event that they are detained for any crime. This civil liberty is commonly known as Habeas Corpus, and is extended to citizens who feel as though they have been wrongfully imprisoned.

In times of constant conflict like todays War on Terror, one might wonder of the application of such rights to detained individuals. The title of President of the United States may mean reserved powers both appointed and implied but it does not mean exemption from constitutional separation of powers or complete subordination to the same. The President may hold the right to detain and try these prisoners, but he/she should not be allowed to abuse given powers by implementing means that will withhold the rights of Habeas Corpus whether the accused is a U.S. Citizen or not

Habeas Corpus dates back to the early 14th century, debuting with the formalization of the Habeas Corpus Act of 1679. American colonist sought this act as a means to evade wrongful imprisonment by the British government, and due to the common suspension of this right, the early framers ensured that “The Privilege of the Wirt of Habeas Corpus” was incorporated into the Constitution, to include that such rights should not be suspended except in cases where Rebellion, Invasion or Public Safety requires it (Columbia Electronic Encyclopedia, 2012). Since then, habeas corpus writs have evolved in American tradition, dating to the Lincoln and Roosevelt Presidency and as recent as the George W. Bush Presidency. Many texts even show how these Presidents regard the writ of habeas corpus, with the greater conflict of executive power against this right lying in the actions of President Bush and his stance on detaining captured enemy/suspected enemy combatants.

Levin-Waldman (2012) illustrates the actions taken by earlier presidents Lincoln and Roosevelt, suggesting a trend in presidential abuse of power when it comes to suspending habeas corpus writs. During the Civil War, President Lincoln took action against the accused, John Merryman, by having union soldiers stop his petitioned writ from delivery to the federal Marshal. Later on during World War II, President Roosevelt convinced the Supreme Court to defer to his wishes in the case of “Hirabayashi v. United States in 1943”, under the stance that certain Japanese- Americans who frequently contact family in Japan “might constitute a security threat” to America during a time of war. Hirabayashi’s violation of the in place military curfew at the time, which was determined by the Supreme Court as a “legitimate defensive measure during a time of war” landed him in a position where his civil liberty to seek habeas corpus as an American citizen was overridden (Ch. 5.7).

The trend of Presidential abuse of power concerning suspension of habeas corpus writs continues even to this day. As stated earlier, the ability to petition for habeas corpus is one of Americas basic civil liberties afforded to every citizen, but how does this apply to current situations that involve non-citizens? Take for example the case of Lakhdar Boumediene v. Bush, where the U.S. government classified Boumediene and five other Algerian detainees as enemy combatants in the war on terror (Ozey, 2008). They were subject to indefinite detention at the well-known U. S. Naval base in Guantanamo Bay Cuba.

The men petitioned for a Writ of Habeas Corpus, alleging violations of the Constitution’s Due Process Clause which the Courts initially ruled in their favor. But in the end, and thanks to the “Military Commissions Act of 2006 (MCA)” spearheaded by President Bush, their petition was revoked and the Courts ruling was overturned because the MCA eliminated the jurisdiction of the federal courts’ to hear habeas applications from detainees who have been designated as enemy combatants (Ozey, 2008) further illustrating presidential influence in such situations.

Classification as an enemy combatant is used continuously to evade allowing detainees access to petitioning for writs of habeas corpus. Calling to question how relevant this writ is to today’s current conflict involving American government and the war on terror. The war on terror is such a broad topic, but one key thing about it that points toward relevancy to habeas corpus rights is that these enemy combatants “are neither soldiers, as they are not fighting for a nation state” (Levin-Waldman, 2012). Therefore because of the broad scheme of this war, it has the potential to go on indefinitely and because “enemy proceedings” may be tailored to alleviate their uncommon potential to burden the executive at a time of ongoing military conflict” (Levin-Waldman, 2012), the implementation of habeas corpus would help weed out the innocent detainees from the true enemies of this country if it were allowed and not deterred by the President through acts like the MCA.

Overall the interpretation of the Supreme Court regarding who is afforded this basic civil liberty based upon the events of today’s conflict will pay dividends as to how much power the President can exercise in future cases, but that is only if their interpretation is met with open-mindedness rather than be shut down at every turn. Levin-Waldman (2012) tells us that, foreign policy presidents have greater power than domestic policy presidents, and often Congress tends to defer to the President during foreign policy situations. However it is safe to say that the war on terror includes both foreign and domestic considerations, which were affected by the actions of terrorists in the September 11th attacks and numerous other events since then.

So what should be done about granting habeas corpus rights to enemy combatants? Looking further into the real situation taking place with detainees at Guantanamo Bay as a result of the MCA, this question is met with much friction. In the Rasul v. Bush case, the Supreme Court interprets the law in a manner that asserted that “the habeas statute extends to non-citizen detainees at Guantanamo” further relating to Boumediene alleging violation of the Constitutions Due Process Clause (Ozey, 2008). But as stated earlier, this ruling was overturned by President Bush’s master minded MCA, whose sole purpose is to overrule the opinion of Supreme Court in doing their due diligence to interpret the law.

However agitated the situation becomes, one must consider the perspectives involving habeas corpus writs in society as it has evolved from conflicts less complicated than todays. These perspectives include the role of the President as Commander-in-Chief, the Congress in determining when habeas corpus can be suspended, the role of the Supreme Court in protecting these civil liberties and one’s own opinion living in a day and age where the war on terror has made it well into its 13th year. Concerning the Presidents Role, the issue becomes whether he is succeeding his power or not. Ward (1990) tells us that during the Civil War, President Lincoln suspended habeas corpus, ignoring the Chief Justices request, by claiming that “more rogues than honest men find shelter under habeas corpus”.

On the contrary, in today’s conflict Foley (2007) begs to differ in that more honest men suffer the suspicion of being affiliated with Al Qeda and other terrorist groups because of the broad scope of the War on Terror, and are detained permanently, rather than the government properly identifying accurate procedures to determine actual terrorist from innocent citizens (p. 1010). This type of dentition gets its justification from an additional measure set in place by President Bush called the “Combatant Status Review Tribunal (CRST)” (Floey, 2007) which leaves the mind to wonder, how many innocent so called enemy combatants are held at Guantanamo Bay without access to habeas corpus writs?

Though it is not clearly stated in the Constitution who can suspend the writ of habeas corpus, and it only states when it can be suspended (Turley, 2012, p. 5), Congresses role in suspending the writ has taken place a whopping three times in American history. Their involvement in determining when to suspend this basic American civil liberty took place in 1871 in South Carolina, in 1905 in the Philippines and during WWII in Hawaii, in varying cases that fell under the constitutional guidelines of rebellion, invasion and public safety (Turley, 2012, p. 6). This lack of participation is attributed to the limitations in the number of challenges a petitioner can make due to recent statutory changes (Turley, 2012, p. 6), but during the times of involvement, Congress deferred to the President, making way for controversial procedures and increased detention of prisoners accused of affiliation with known American enemies.

The Supreme Court on the other hand seems to have had their hands tied concerning the rights of these enemy combatants in relation to petitioning for writs of habeas corpus. Referring to the Hamdan v. Rumsfeld case in 2006, the Supreme Court’s ruling in an effort to protect Hamdan’s civil liberty as an American citizen expressed that the “President’s establishment of military commissions violated the requirements of Uniform Code of Military Justice (UCMJ) Article 36(b) and the Geneva Convention’s Common Article 3” (Dealy, 2007, p. 1071). But in doing so, they have been held at bay in their efforts to protect not only detained citizens, but have also been unable to make strides toward ensuring the government applies fair rules in identifying actual enemy combatants due to deferment to the president by congress and implemented rules like the MCA and CRST.

With all the facts regarding the rules of habeas corpus and how it has played out in American history, one’s personal opinion of the matter ultimately determines how they view the purpose of protecting basic civil liberties and national security in today’s society. My view of this entire matter is filled with much anger toward the current situation and treatment of detained suspected enemy combatants. I have served on three combat tours while in the Army, and have worked very closely with Kuwaiti and Afghani nationals. I had to learn the hard way that all of these people are not Al Qeda members/ supporters and also that not all of them are out to hurt America and its citizens. My initial bias and clouded judgment based upon what was feed to me through what I though was once a justified approach by my government caused me to enter into an aggressive and fearful correspondence with these people on my first two deployments.

It was all about national security and American safety until I learned otherwise, but what truly changed my mind about this vision I owned was the continuous attacks America faced regardless of the constant detention of enemy combatants under the suspicion of being an enemy of America. Foley (2007) put it best when he said that “not only is there no need to sacrifice civil liberties for security, but that sacrificing civil liberties actually threatens public safety” (p. 1021). Such is the case in the governments dated approach to granting habeas corpus to enemy combatants and the treatment of these detainees whether they are U. S. citizens or not, hence the continued and progressive battle faced by the country with enemy personnel to this day. The rules that govern this nation are not always clear cut, and the government at times does more good at distorting public views by acting in ways that benefits the points they are trying to make.

Every level of government, based upon “separation of powers and checks and balances” (Levin-Waldman, 2012) has specified jobs regarding protecting American civil liberties and the national security as written in the Constitution. When it comes to protecting these points and its relevancy to habeas corpus, the struggle remains as to how the government will do so as it pertains to the conflicts America is engaged in today. The rights of detainees whether they are American citizens or not, have fallen short of being totally ignored by most citizens, but has had the full attention of executive power for many years concerning how long and for what reasons so called enemy combatants can be detained.

Despite the fact that the president’s power to imprison such enemy combatants is justified by the Constitution, it has never and most certainly will never state that there should be a use of abuse of executive powers to justify suspension of habeas corpus rights to these detainees. Regardless of how executive power in regard to habeas corpus writs have evolved over the years, the President should not be able to succeed his/ her power by manipulating the system through implementing a series of well drafted acts to permanently deter from what is written and determined as law in The Constitution of the United States.


Dealy, J. D. (2007). Subordination of Powers: Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006). Harvard Journal of Law and Public Policy, 30(3), 1071. Foley, B. (2007). Guantanamo and Beyond: Dangers of Rigging the Rules. Journal of Criminal Law & Criminology, 97(4), 1010-1021 Levin-Waldman, O. M. (2012). American Government. San Diego, CA: Bridgepoint Education, Inc. Oyez.
(2008). Boumediene v. Bush. IIT Chicago-Kent College of Law. Retrieved from http://www.oyez.org The Columbia Electronic Encyclopedia, 6th ed. (2012). Habeas Corpus. Columbia University Press. Retrieved from http://www.infoplease.com Turley, J. (2012). Habeas Corpus. The Heritage Guide to The Constitution. Retrieved from http://www.heritage.org Ward, G. C. (1990). Lincoln Suspends Habeas Corpus [Series episode]. In K. Burns, The Civil War: Episode 1 – The Cause (1861). Retrieved from http://digital.films.com.

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