Since September 11, 2001, Americans have faced a new enemy that is not distinguishable by conventional terms of the law of war. As a result of this fact, the detention of these enemy forces has brought about a large debate among, mostly, the Executive branch and the Supreme Court. At the center of the debate is the rights of the enemy detainees. The Supreme Court argues that because their detention is at a location that is under the complete control of the United States, their rights are blanketed under the Suspension Clause of the Constitution and as such, they should be granted the right to seek Habeas Corpus. The Executives maintain that unlawful enemy combatants have no rights under the Constitution of the United States and that the President retains full control over their detention.
This paper will look at the English and American background of Habeas Corpus and how it plays into the landscape of war today. I will also briefly look at past suspensions of the writ, as well as the perspectives of the Executive, Legislative, and Judicial branches and how the writ applies to alien enemy combatants. I will also offer my own perspective on the same. Quite simply put, an unlawful enemy combatant caught fighting against the United States oversees and brought to a location that the U.S. does not have sovereignty over, should not be afforded the same rights as the citizens and alien residents of our great nation that they fight against.
The ‘Great Writ’ of Habeas Corpus has its’ roots in English Common Law dating back as early as the 13th century. The literal meaning in Latin is “to have the body” which quite basically obliged that the jailor bring the accused before a court (the King’s Bench) to determine if his detainment and confinement was lawful. In fact, the writ was meant to regulate jailors, resolve issues with jurisdiction and monitor the powers of the magistrates (Halliday, J.D., 2010). It was not a tool used to release the prisoner, but a tool of governance.
When the writ traversed the Atlantic Ocean and came to America, it was, and still is, considered the most important safeguard ofpersonal liberty. Habeas Corpus is protected in the Constitution of the United States in Article 1, Section 9 wherein it states “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” (Levin-Waldman, 2012). From its inception in the United States, Habeas has remained virtually unchanged. The Writ has only been suspended by the President and authorized by Congress four times in America’s history with the first instance when President Lincoln suspended it during the Civil War in order to detain opposing forces who were attempting to prevent troops trying to protect the Capital. Since then, it was used by Grant in the Ku Klux Klan Act, the rebellion in 1902 and in 1941 after the attack on Pearl Harbor (Jackson, 2010).
Even during these times the suspension was lifted once the war or threat thereof was over (Langford, 2003) and those detained as a result were either released or tried and convicted. It wasn’t until the horrific attacks of September 11, 2001 where terrorist agents used commercial airplanes as weapons of mass destruction to kill thousands of innocent civilians within the borders of the United States that the issue of the suspension of Habeas Corpus came to the forefront once again. After the attacks, Congress wrote the Authorization to Use Military Force (AUMF), which granted the President to use “all necessary and appropriate force…against all nations, persons, operatives, etc. involved in the plotting and execution of the September 11th attacks…” (Piret, 2008). It is well known that the President’s first priority is that of Commander in Chief of the Armed Forces in times of War. After the horrific attacks in 2001, President Bush declared a “War on Terror”.
This type of war has no precedence in history in which to go by; it consists of unconventional fighters using unconventional methods of attacks unlike any seen under the law of war. ]As a result of these circumstances, it was crucial for the President to initiate his wartime authority to detain belligerents fighting against the United States and her allies and detain them in a location in order to protect the nation’s security against future attacks. The President unilaterally labelled these detainees as “unlawful enemy combatants”- persons who did not wear uniforms of a nation or state, carry conventional weapons, or direct their assaults strictly on armed forces- which is the definition given to prisoners of war (POW’s) (Acharya, 2012).
Due to the vast allocation of the military’s assets and service members fighting in Iraq and Afghanistan, the President needed a location to detain these combatants away from the battlefield, Guantanamo Bay or GITMO. GITMO is a military location in Cuba that the United States has had an open-ended lease for since 1903. According to the Bush administration, this location was ideal because the area was under Cuban sovereignty but under the complete control of the United States. This meant that the long arms of the law would not reach to GITMO and the President essentially had free reign as to the treatment and length of detention of these unlawful enemy combatants. With this status, the administration argued that they could hold a detainee for an undisclosed amount of time without trial because the War on Terror was essentially ongoing.
Also, this status allotted that the detainees could not be tried in civilian courts or be granted the rights and protections afforded to POW’s under the Geneva Convention (Piret, 2008). Because of these unique circumstances, the Courts became inundated with petitions for Habeas Corpus rights. The Executive branch argued that the courts could hear applications only “within their respective jurisdictions” and that Guantanamo did not fall within U.S. sovereignty, basically asserting that the judges had no authorization to hear cases from non-citizens that were held in a place where Cuba retained sovereignty. Because the nation was at war, the President retained full war time powers and could essentially be the judge, jury and jailer of the accused held at Guantanamo Bay (Healy, 2012). As a result, a few groundbreaking cases came in front of the Supreme Court.
One of these cases was Rasul vs. Bush wherein the Supreme Court rejected the administration’s claim that the President had the power to jail those accused of terrorist activities without access to lawyers and without access to any possibility of judicial review (www.oyez.org ). The decision held that the detention of the defendants did in fact hinder on the Fifth Amendment rights.
After the impact of Rasul and another case decided by the Supreme Court on the same day, Hamdi v. Rumsfeld, the executives were forced to create military tribunals called Combatant Status Review Tribunals (CSRTs), that afforded minimal protection to prisoners(Foley, 2007). However, these tribunals did not allow for the prisoner to obtain legal counsel, did not have juries, and could rely on hearsay and coerced confessions by innocents. Unfortunately, these tribunals were heavily weighted towards the government and even though the process did result in the release of a number of detainees, the majority of CSRT’s have affirmed the detainees to be unlawful enemy combatants (Chesney, 2008 and Foley, 2007). The executive branch, despite these facts, argued that the CSRTs most closely resembled that of courts-martial that were afforded to members of the military, while still falling far short of Habeas rights.
Amidst this rather heated debate amongst the Supreme Court and the Executive branch, Congress remained on the outskirts for the most part. Congress has never attempted to restrict or interfere with the President’s authority to detain belligerents; their main points were that the purpose of military detention was exclusively preventative and evidence of liability is not necessary for the United States to detain a suspected terrorist. However, because of the Court’s rulings, Congress did enact the Military Commissions Act of 2006. More or less, the MCA afforded the detainees the right to challenge the basis of their detention, the right to hear charges, and the right to testify, introduce evidence, and witnesses. Nevertheless, MCAs still allowed for coerced evidence to be produced. Additionally, the MCA empowered the Executives further and further delineated the courts from the review process afforded under Habeas Corpus.
Coinciding with the MCA, Congress also intervened with the Detainee Treatment Act (DTA) that essentially provided a replacement mechanism for Habeas for judicial review where the Court of Appeals could determine if the CSRTs complied with regulations in place by the Defense Department and if those regulations were consistent with the Constitution and laws of the United States (Chesney, 2008).
Despite the efforts of both the Executives and Congress to deplete the role of the Courts, the Supreme Court handed down a landmark 5-4 ruling in Boumediene v. Bush. Bouemediene brought up the issue of constitutional privilege of Habeas which it held could not be withdrawn without conforming to the Suspension Clause in the Constitution. In its ruling, the majority found that the MCA deprived the Federal Courts to hear habeas claims, therefore unconstitutionally stripping their rights to the same (Piret, 2008). The Court held that even though the U.S. did not have sovereign control over GITMO, the complete control over the base made habeas rights a necessity.
The majority also struck the DTA claiming that it fell short and did not provide a level of protection required to override suspension of habeas. Because of Boumediene, Congress cannot enact jurisdiction –stripping legislation to deny executive detainees’ access to judicial review that it twice tried to do with MCA and DTA. Nevertheless, that the “Court and the writ of Habeas Corpus is indispensable for monitoring separation of powers, and the test for determining the scope cannot be subjected to manipulation by those whose power it is designed to restrain” (US Newswire, 2011).
On the other side of the court, the dissenters thought that the majority’s decision ignored the Constitution’s structure and defied Congress in establishing procedures for appeals. They went further to say that the historical survey is inconclusive about alien prisoners outside of formal U.S. territory, and Justice Scalia says that the fact that even in the English cases, no alien was granted or rejected the right to the writ which was further proof that Habeas was not in favor (US Newswire, 2011). The dissenters furthered their point by stating that the Boumediene ruling is “the most generous set of protections ever afforded to aliens detained as enemy combatants in any war, ever” and that the decision was not about the detainees but about the Court’s control of Federal policy (Acharya, 2012, Healy, 2012 and Piret, 2008).
In light of all of the controversy surrounding Guantanamo Bay and whether the detainees have a constitutional right to it, one needs to look carefully again at the Suspension Clause “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”. It is the last part of this clause that needs the most emphasis when looking at it from the “War on Terror” perspective “…the public Safety may require it.” Because terrorists are bred from many nations, do not have a uniform to be easily recognized by, and can walk within the boundaries of the United States virtually undetected, the law of war holds a different ground. Terrorists are by far and large profoundly hard to distinguish as there is no set guideline.
Regardless of the fact that a belligerent fighter is a U.S. citizen or an alien combatant, they should all be reviewed in the same manner, as that of unlawful enemy combatants. Under that status, they should not be afforded the rights allotted to the citizens and resident aliens of the United States. Having said that, it should be the President’s sole responsibility as Commander in Chief to detain these belligerents for as long as it takes to ensure the safety of Nation.
On another level, the Supreme Court in its Boumediene ruling left out a few key factors to determine a proper procedure in the detention of the unlawful enemy combatants in areas other than Guantanamo Bay. It also did not clearly define whether its ruling affected trials currently scheduled to occur in CSRTs. The Court did not establish whether granting habeas rights to detainees at Guantanamo would further put Americans’ lives at risk by bringing them into the very states that they fight against. Habeas is not about the proof of war crimes but about determining the status of those detained- whether they are POWs, Al Qaeda, or innocents (Yoo, 2012).
Given that Congress waited almost five years to enact any type of legislation to determine this element is what has given America a bad reputation among the global community. If Congress had acted in a more expedient manner, those detained who ended up being innocent or POWs should have been moved to another location and Guantanamo Bay would have truly been for unlawful enemy combatants.
Furthermore, because Guantanamo Bay, even though under Cuban Sovereignty, is in all respects a U.S. military installation under the complete control of America, and therefore the Commander in Chief, any type of review should be conducted by military members and not civilian courts. The detainees, if allotted any amount of liberties under the Geneva Convention, should be maintained solely by the Armed Forces. There is nothing that states that the Supreme Court has the power to overhaul the President’s Commander in Chief powers, thus the Supreme Court is wrong in its assertion that the detainees should be afforded habeas rights. The courts interjection of this
fact seems to be simply to ensure them of their own federal powers than the rights of the detainees. They assert to retain their jurisdiction simply because Congress sought to relinquish those powers in the MCA and DTA.
In closing, the writ of Habeas Corpus should not be afforded to detainees that have been established as unlawful enemy combatants. Aliens detained during combat with American forces in a foreign theatre, without uniforms or conventional weapons, who seek to harm or kill those other than armed forces are not to be determined as POWs or innocents and should be maintained at a location, Guantanamo Bay, which is outside of U.S. sovereignty. While these combatants could be allowed a review as outlined in the MCA, their alien combatant status does not constitute the right to Habeas Corpus. With the Supreme Court’s hole-ridden ruling in Boumediene, it should be expected that there are many questions which still need answers which are likely to come about in future habeas cases.
Regardless of that fact, given that the War on Terror is not likely to come to a close any time soon, alien unlawful combatants should remain under the detention of the Commander in Chief, at whose discretion it is as to how to handle them, not the Supreme Court, whose main theatre is civil and criminal matters, not matters of war.
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