In the past few years there has been people seeking the question “what is the right process of eliminating terrorist from non-terrorist? ” How does this affect the United States and what things can we do to make it better. In are efforts to understand this we need to start off from the beginning by learning what Habeas Corpus is, where it comes from and how America follows its traditions. The best place to start off is what Habeas Corpus means, it comes from a Latin term which means “you have the body”. It means to bring a person that is under arrest to court or before a judge.
The reason for Habeas Corpus is so that a prisoner can be released unlawfully if there is lack of evidence or cause. Habeas Corpus originated from the English legal system and is now used in many countries around the world, it is also known as “Great Writ”. Habeas Corpus “Great Writ” was first used in England not for helping detainees, but for helping government officials in the judicial process and remuneration. The origin explains why there has been much controversy because Habeas Corpus wasn’t made to help as Edward Jenks famously said “Originally not intended to get people out of prison, but to put them in it”(Gregory, 2011).
Habeas Corpus is talked about in the Constitution in Article I, Section 9. There it is stated 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”. During are United States history there has been many times that Habeas Corpus was suspended. During the beginning of the Civil War in 1861 President Lincoln suspended Habeas Corpus, his decision was upheld by congress. This brought issues because it was said that it wasn’t in the president’s hands to do so.
The Supreme Court’s liberal decisions in the 1950s and 1960s in the area of prisoners’ rights encouraged many incarcerated persons to file writs challenging their convictions, but the Court under William Rehnquist limited multiple habeas corpus filings, particularly from prisoners on death row”(Corpus, 2013). “English history demonstrates that Parliament adopted the practice of suspending the protections of the Habeas Corpus Act in order to bring within the law the detention without charges of persons subject to the law of treason for criminal or national security purposes.
This explains why Parliament commonly suspended the Act in times of war, including during the Revolutionary War, when Parliament sought to legalize the detention without charges of captured American soldiers on English soil (where the Habeas Corpus Act was in effect and, as Lord Mansfield advised Lord North’s Administration, the writ would therefore be available to them to win their freedom so long as they claimed subject hood”).
As is also brought to light in this Part, once Parliament came to accept that the colonists had broken their allegiance from the Crown, it permitted its suspension legislation to lapse and recognized the colonists remaining in custody as “prisoners of war” whose rights would no longer be governed by domestic law but instead by the “law of nations” (Clause, 2012). Finally, the newest time to recall suspension of Habeas Corpus is when President Bush was President, it was called Boumediene v. Bush and it happened in 2008. This was a submission made in civilian court on behalf of Lakhdar Boumediene. He was a citizen of Bosnia and Herzegovina and was held at Guantanamo Bay a. k. a Gitmo, located in Cuba in detention camps. Guantanamo bay is technically owned by the United States, but under 1903 lease between United States and Cuba, Cuba is the one who had ultimate control over the territory. Many arguments we heard over this by the Supreme Court.
When it all ended there was a 5-4 majority on the case, it was said that the prisoners had a right to Habeas Corpus under the constitution and that the Military Commissions Act of 2006 was a suspension of that right. It was ruled in Boumediene v. Bush that detainees from Guantanamo Bay were to be heard under the Habeas Corpus Act. Under the MCA law, the law restricted Habeas appeals for only aliens detained as enemy. The status was upheld, then there could be imprisonment. If that wasn’t the case the government could change the status, which then the Habeas Corpus rule would not apply.
There is no legal time limit on when there has to be another review hearing. Prisoners were, but are no longer able to petition before a CSRT hearing takes place. In the present this makes for many loop holes towards the detainees and how the Habeas Corpus affects them. There really isn’t even guarantee that it will help a detainee, because of all the loop holes in the system. Basically we can hold them for as long as we want, we don’t have to give a fair trial to them and we can change their statuses often, leaving them to serve many years in the camps.
Habeas Corpus is very relevant on the war on terror because of the fact of how many detainees we kept and still keep at Guantanamo Bay. “Supporters of the US. anti-terrorism policy of indefinitely imprisoning “enemy combatants” captured in the “War on Terrorism” claim that it gives the Executive needed flexibility for incapacitating potentially dangerous terrorists and interrogating them with harsh methods to uncover plans for terrorist attacks”. (Foley, 2007) This policy has been criticized because it is illegal and immoral.
In the article the policy is argued that it is not an effective way to do things. The policy makes so the government can’t make an effective investigation to prevent terrorist attacks. There treating them all like terrorist and not giving the benefit of the doubt. There is no judicial process to separate terrorist from non-terrorist. “Given that innocent people are likely to confess falsely when subjected to coercion, the policy risks proliferating false confessions and false leads that inundate and mislead investigators”. Foley, 2007)There needs to be reliable judicial review to sort these people.
“In Hamdi v. Rumsfeld, 542 US. 507 (2004), the Supreme Court ruled that prisoners had only limited rights to challenge that they were “enemy combatants,” and the Bush administration used that ruling to create the Combatant Status Review Tribunal (“CSRT”). The CSRT, however, is rigged to rubber stamp the government’s case. The CSRT applies a broad definition of “enemy combatant” that inevitably ensnares innocent people; applies a presumption of guilt, has no juries; disables prisoners from gathering exculpatory evidence; prohibits prisoners from having lawyers; and relies on hearsay, coerced confessions, and secret evidence to reach its judgment that a prisoner should be detained indefinitely. Also rigged are the “military commissions” created by the administration to try “enemy combatants” for terrorism and war crimes. Military commissions may rely on coerced testimony and hearsay and use soldiers for jurors.
But, unlike the CSRT, military commissions can impose death sentences, which cause innocent prisoners facing what they believe is certain execution to “cooperate” by confessing or falsely accusing others”. (Foley, 2007) Rigged rules undermine investigation and therefore make for a unclear of what to do and what is fair. The U. S. Supreme Court suggest that the suspension clause protects how the writ was in 1789, which is that the federal judges could exercise the common law authority. Congress grants federal district courts, the Supreme Court, and all Article III federal judges the right to issue the writ of Habeas Corpus.
These are subject to limitations if the prisoner; is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or is in custody in violation of the Constitution or laws or treaties of the United States; or Being a citizen of a foreign state and domiciled therein is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, order or sanction of any foreign state, or under color thereof, the validity and effect of which depend upon the law of nations; or It is necessary to bring said persons into court to testify or for trial. “The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) further limited the use of the federal writ by imposing a one-year statute of limitations and dramatically increasing the federal judiciary’s deference to decisions previously made in state court proceedings either on appeal or in a state court habeas corpus action.
One of AEDPA’s most controversial changes is the requirement that any constitutional right invoked to vacate a state court conviction rooted in a mistake of law by the state court must have “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. ” Thus, a U. S. Court of Appeals must ignore its own precedents and affirm a state court decision contrary to its precedents, if the U. S. Supreme Court has never squarely addressed a particular issue of federal law” (Habeas Corpus in the United States, 2013). In the power directed toward Habeas Corpus with are President and Commander and Chief in Article II Section 8 it does state “the President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States. This means that the president can make some decisions but they will not be fully carried out by him when it comes especially time of war, the Supreme Court and the military must also back it up.
However, the President does have more power during these times. When it comes to Congress they can suspend Habeas Corpus only in time of rebellion or invasion, from the text I stated earlier that came from the constitution “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”. This is only the federal government at this point that would be allowed to do so and not the states. Congress has had the power to suspend early commentary since 1779.
As for the role in Supreme Court I stated that earlier in my paper. The beliefs in my own morals and values when it comes to the balance between civil liberties and national security on the unending war of terrorism is this. You can only be so kind to those that are enemies, it is hard to sort those who are good and those who are bad. I do believe in fair trial and you should be treated like a human being, but in retrospect these terrorist would not do the same. We however need to uphold a good image and this we should do everything to look good when it comes to these detainees and the countries they come from. In time of war I do believe fully in the phrase “Kill em’ all and let God sort them out”.
I believe in this because we need to take care of us and any country would do the same. I don’t believe in killing though unless have to and women and children should never be part of this, unless they are trying to kill you. I believe that civil liberties are important to keep organization when it comes to laws being enforced and for something to go by, I think that national security needs to be more open minded and open period because they hold a lot from us. After reading this paper you can see the question “what is the right process of eliminating terrorist from non-terrorist? ” It is still in the air when it comes to what the government is doing.
It is questionable if the writ of Habeas Corpus should be even used, because it was not really made to help detainees. Overall, we need to come up with a better formation or the process of keeping and eliminating the detainees that we have kept and are still keeping. The only way for this to happen is for everyone to come together and make a new bill stating regulations for this. I think that we could do a better job than we do when it comes to Habeas Corpus, but the way things are written I think it has maintained decently over the years also. Overall, I feel for those who aren’t really guilty and I hope that one day things are fixed for the better. It is basically judging a book by its cover and it is something that we should not do.
University/College: University of California
Type of paper: Thesis/Dissertation Chapter
Date: 11 November 2016
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