The War on Terror Essay

Custom Student Mr. Teacher ENG 1001-04 30 April 2016

The War on Terror

The War on Terror has changed the lives of all American citizens. Our civil rights and liberties have been changed forever. There is little to no federalism left in the government. There now seems to be a power struggle between the three branches of government: the Judicial, Executive and Legislative, on who gets to make the laws. The checks and balances system does not appear to be in balance. Many Acts have been put in place since the war on terror has begun. Other laws, specifically habeas corpus, has been argued. Habeas Corpus is derived from English common law. “Translated as “you should have the body”, habeas corpus is a legal action, or writ, by which those imprisoned unlawfully can seek relief from their imprisonment (retrieved from” It first appeared in the Magna Carta of 1215. It is also the oldest human right in the history of the English speaking world.

The concept of habeas corpus comes the necessity that a government must either charge a person or let them go. Habeas Corpus was important to the Framers of the Constitution they knew from personal experience what it was like to be labeled enemy combatants, imprisoned indefinitely and not given the opportunity to appear before a neutral judge. The Framers felt that this right was so important that it was written in to the Constitution itself. The first suspension of habeas corpus was in 1861 in Maryland and parts of the Midwestern states by President Lincoln. He feared that Maryland would secede from the Union because of riots and local militia action (retrieved from The second suspension of habeas corpus was during the Reconstruction in the early 1870s by President Grant. The President was responding to civil rights violations by the Ku Klux Klan; it was only limited to nine counties in South Carolina. There was a suspension of habeas corpus during the “war on terror” in 2001. “The interminable detainment of those deemed to be “enemy combatants,” and the government’s right to determine who might fall into that obscure category (Unknown, 2011).”

This took away the writ habeas corpus for all foreigners. This is referred to as the Patriot Act. Boumediene v. Bush was a Supreme Court case that was delivered in June of 2008. It challenged the legality of Boumediene’s et al detention at the United States Naval Station military base in Guantanamo Bay, Cuba as well as the constitutionality of the Military Commissions Act of 2006. The Military Commissions Act or MCA was an act passed by Congress that gave only Congress, not the Executive Branch, to set up military commissions to try captives taken in the “war on terror”. The Act attempted to mandate that all outstanding habeas corpus submissions on behalf of the captives should be suppressed. The Supreme Court ruled that in Boumediene v. Bush detainees would not have to go through the regular court channels for their writ of habeas corpus to be reviewed. The Court used the “impracticable and anomalous” test to help decide the outcome. “Applying that test, the Court evaluated a set of factors with a view toward determining whether the application of the constitutional right to habeas in Guantanamo would be “impracticable and anomalous” (Burnett, 2009).”

It would go directly to the Supreme Court (Pond, 2009). Additionally, the original claim by the government that they have no jurisdiction in Cuba was overturned by the Supreme Court. There was “no reason to believe an order from a federal court would be disobeyed at Guantanamo. No Cuban court has jurisdiction to hear these petitioners’ claims, and no law other than the laws of the United States applies at the naval station. (Pond, 2009)” The Supreme Court was not in total agreement on how to rule on this issue. There were five Supreme Court Justices in favor of the ruling and four disagreeing. Chief Justices Roberts, Scalia, Thomas and Alito were the four Justices disagreeing with the ruling. Chief Justice Roberts argued that this issue should have gone through all the regular channels before coming to the Supreme Court. It especially should have been tried under the Detainee Treatment Act. The Act states that all captives held by the United States are protected against torture and restricted the submission of additional habeas corpus.

He also argued that it could have also been tried under the Military Commissions Act. (Pond, 2009) Habeas Corpus rights were very important to President early in his career even before elected to the White House. Barack Obama strongly supports bipartisan efforts to restore habeas rights. He firmly believes that those who pose a danger to this country should be swiftly tried and brought to justice, but those who do not should have sufficient due process to ensure that we are not wrongfully denying them their liberty. When Obama ran for President of the United States back in 2008, “he told voters he strongly supported efforts to restore habeas corpus rights to people the U.S. government had deemed enemy combatants (Wogan, 2012). In December 2011, President Obama signed the National Defense Authorization Act. This Act “authorizes the indefinite detention, without trial or indictment, of any US citizens designated as enemies by the executive.

The individuals concerned are not only those who have been captured on the field of battle, but also those who have never left the United States or participated in any military action. (Rolls, 2012)” President Obama stated that this Act would not be contrary to United States law but only to American Values. This law concerns any citizen that the government deems a member of Al-Qaeda, the Taliban, or any person who partakes in hostile acts against the United States. President Bush used the verbiage: “it is recognized that the President has the authority under the Constitution to dissuade and defend against acts of international terrorism against the United States. (Rolls, 2012)” The President is now using the same verbiage to “deny the innovative nature of a law which enables him to do away with Habeas Corpus for any US citizen. (Rolls, 2012)”

Only Congress has the power to suspend the writ of habeas corpus, either by its own affirmative action or through an express delegation to the President. The President does not have the independent authority to suspend the writ. The Suspension Clause was written into the Constitution; 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. (Morrison, 2007)” In other words, “Congress can insulate the executive’s detention decisions from judicial oversight via habeas corpus while the detention is ongoing. (Morrison, 2007)” Judicial philosophy is the way in which a judge understands and interprets the law. Laws are universal, but they must be applied to particular cases with unique circumstances. To do this, judges interpret the law, determining its meaning and sometimes the intent of those who wrote it.

The main types of contrasting judicial philosophies include judicial activism versus judicial restraint, loose constructionism versus strict constructionism, and living document versus original intent. Some judges develop a philosophy of activism, using the bench to enact social and political change. Other judges practice a philosophy of restraint, believing that judges must interpret the law strictly rather than seek to make new laws. And all judges, regardless of their philosophies, develop their own methods of reading the Constitution. Some judicial philosophies tend to coincide with certain political views. Most strict constructionists, for example, are also advocates of judicial restraint, but not all. Similarly, many advocates of judicial restraint also follow the doctrine of original intent. These views, however, do not always overlap. As a result, judicial philosophies are not the same as political ideologies.

From June 2004 to June 2008, the Supreme Court has been involved in six major cases regarding habeas corpus. “The Court has taken a relatively assertive position in defining the reach of federal habeas jurisdiction and thereby increased the number of cases to which the federal judiciary’s law-declaring authority extends. (Fallon, 2010)” The court has done its best to protect civil liberties and specifically the writ of habeas corpus for American citizens. Since the “war on terror”, habeas corpus has been seen in the Court more frequently than before. In my opinion, the balance between civil liberties and national security is completely unbalanced. It currently feels like the government is watching everything that we do. Getting onto an airplane is a complete invasion of privacy. I understand the reason for the search. I do not understand why the government needs to know what I carry in my diaper bag.

Also, when I reenter the country, my bags are practically ripped through. I do not think a mother of three young children with her would attempt to smuggle anything into the country or carry anything with her that could cause harm to anyone. In conclusion, the war on terror has changed not only the lives of American citizens but has also shook up the government. Congress specifically has spent a large amount of time on our civil rights and liberties. The President has had to make executive decisions for detainees in Guantanamo Bay. Also, the Supreme Court has had to decipher the meaning of habeas corpus that the Founders created. The government is trying to protect the citizens of this great country but some lines have been crossed on whether these laws are constitutional or not.

Unknown (2011). Human Rights. United States Country Review. 2011, p283-286. 4p. Database: MasterFILE Premier Pond, B. (2009).Boumediene v. Bush: Habeas Corpus, Exhaustion, and the Special Circumstances Exception. Brigham Young University Law Review, 2009(6), 1907-1933. Burnett, C.D. (2009). A Convenient Constitution? Extraterritoriality after Boumediene. Columbia Law Review, 109(5), 973-1046. Wogan, J.B. (2012). Many enemy combatants still lack habeas rights. Retrieved from ( Rolls, J. (2012). The Suspension of Habeas Corpus in America: Obama: A President Who Places Himself Above The Law. Retrieved from ( Morrison, T.W. (2007). Suspension and the Extrajudicial Constitution. Columbia Law Review, 107(7), 1533. Fallon Jr, R.H. (2010). The Supreme Court, Habeas Corpus, and the War on Terror: an Essay on Law and Political Science. Columbia Law Review, 110(2), 352-398.

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