POL_VII

Running Head: HABEAS CORPUS 1

The Rights of Habeas Corpus and the Global War on Terror

POL 201: American National Government

Dr. Peter Trzop

February 1, 2015

Introduction

HABEAS CORPUS 2

With a resolute system of balanced governmental control, our resilient U.S.

government has proven its ability to continually stabilize our State and citizen rights for

over two centuries now. However, many rights that were first established by the

Founders of the U.S. Constitution themselves have also been challenged at times during

the history of American national government. One such period is our focus of study

within this paper: the enduring Global War on Terror [hereafter, the GWOT].

Although American civil liberties are established and protected by the U.S.

Constitution and our government, the Writ of Habeas Corpus and its basic right of due

process, was not protected or exercised by the U.S. government at times during the

GWOT (Niday, 2008). To better understand why it was suspended in recent years, first

we will explore habeas corpus and its historical evolution from its early English

beginnings to our American tradition and constitutional protection today. We will also

reflect on two examples in American history where the protection of habeas corpus was

notably suspended. Next we will examine how the rights of habeas corpus relate to

detainees that this paper will explore later as “enemy combatants” during the GWOT.

Then we will assess the U.S. Supreme Court’s decision regarding habeas corpus and its

final interpretation for detainee rights. Finally, our government’s three distinctive

branches and their differing viewpoints on habeas corpus rights, as it relates to detainees,

will be analyzed and compared against this author’s personal opinion on civil liberties

during periods of national crisis. Let us begin by first reviewing the history behind

habeas corpus rights.

HABEAS CORPUS 3

I. The History of Habeas Corpus

The writ of habeas corpus can be traced back hundreds of years ago in England.

According to the BBC, the principles of this right were first exercised as far back to a

time that was even prior to the Magna Carta in 1215, where it was considered common

law by then with its Article 39, signed by King John, which states: “No free man shall be

taken or imprisoned…(and)…except upon the lawful judgment of his peers or the law of

the land” (A brief history, 2005, para. 9). This common law and its practice continued in

England until Parliament officially passed its right as the 1679 Habeas Corpus Act, and

amended and expanded it at times throughout the years that followed to provide the

King’s Bench justices a means of parliamentary review onto cases where petitioners felt

their protection of individual liberties may have been violated (Hashimoto, 2013).

Years later in America after becoming an independent nation, the Founders

designed a system of government for the U.S. that included a Suspension Clause in

Article I, Section 9 of the U.S. Constitution, which states, “The Privilege of the Writ of

Habeas Corpus shall not be suspended, unless when in the Cases of Rebellion or Invasion

(of) the public Safety may require it” (Tyler, 2012, p. 903). This constitutional clause

preserves the same fundamental right for America that was protected by the courts in

Parliament. It provides each citizen with our minimum right to due process when we are

accused of violating any laws or crimes that we are apprehended and denied basic

liberties for doing.

It has an importance in American tradition that was once characterized by Chief

Justice John Marshall, who in 1830 stated it as the “great object (of the writ of habeas

corpus) is the liberation of those who may be imprisoned without sufficient cause”

HABEAS CORPUS 4

(Farrell & Rohde, 2010, para. 13). Although the Founders provided that the government

is constrained from suspending such privilege, they did assert that the government

reserves the authority during national crisis or emergency to suspend habeas corpus when

absolutely necessary (Tyler, 2012). Consequently, as this important clause has served as

our basic protection for many civil liberties within American tradition, it has also

functioned with much debate at periods when our government suspended them against

certain people and whether or not it met the constitutional requirements that the Founders

intended.

II. Historical Examples of Habeas Corpus Suspended

Our government, during times of national crisis, has withheld habeas corpus

privileges. Perhaps one of American history’s first noteworthy suspensions of this

privilege occurred when President Lincoln decided to revoke habeas corpus in the Civil

War during military arrests of several Southern supporters who were accused of

questionable or unlawful acts against the Union (White, 2012). Examined closer inside a

Journal of Supreme Court History article, with supported research of Historian Mark E.

Neely Jr. highlighted, it is estimated that more than 14,000 civilian arrests and over 4,000

union military tribunals against civilians occurred as a result of Lincoln’s decision to

suspend of habeas corpus (White, 2012, p. 1). His executive actions were challenged in

the Supreme Court, who ultimately concluded that he lacked the authority to suspend

them at all, declaring that the authority of the suspension clause is held with Congress,

not the President (White, 2012). Regardless of Lincoln’s good intentions to preserve the

HABEAS CORPUS 5

Union, the Court deemed his actions as unconstitutional. The U.S. would continue to

suspend habeas corpus again in future wars involving America.

During World War II, this privilege was suspended again when the U.S.

government established internment camps for thousands of U.S. citizens with Japanese

ancestry (Japanese Americans, n.d.; Tyler, 2012). Through Executive Order 9066, in

1942, just months removed from the Pearl Harbor attacks, President Roosevelt ordered

West Coast Japanese-American citizens to relocate to what was known as War

Relocation Centers (Japanese Americans, n.d.). This meant that the U.S. government, for

the first time in such sweeping capacity, placed a specific racial-minority group (over

one-hundred thousand Japanese-Americans) in detention without habeas corpus

(Japanese Americans, n.d.).

The government’s actions were even upheld by the Supreme Court in 1944 (when

three years of internment camps ended) as being constitutionally appropriate to restrain

Japanese-American’s civil rights without trial because the time and crisis in the U.S. was

one where there was a “pressing public necessity” (Japanese Americans, n.d., p. 1).

Eventually, over four decades later, Congress would reassess this suspension of habeas

corpus and American detention by passing the Civil Liberties Act of 1988, recognizing it

as being a “grave injustice” and awarding a reparation payment of $20,000 to each

Japanese-American internment victim (Japanese Americans, n.d., p. 1).

Although the government worked to amend what was later deemed

unconstitutional, it remains a dark chapter in American history where certainly so many

Japanese-Americans lost almost everything while interned; which included for many,

even their own homes and property. As hard as these profound examples were to be in

HABEAS CORPUS 6

lessons America would learn from, national crisis would continue providing the U.S.

government with opportunities of suspending habeas corpus, to include in contemporary

times during the GWOT.

III. Habeas Corpus Suspended for Enemy Combatants in the GWOT

The terrorist events of September 11, 2001 (9/11) and the resulting GWOT since,

impelled the U.S. government to revisit the Founders designed constitutional mechanism

of emergency power to suspend habeas corpus during a national crisis. After 9/11,

President G. W. Bush and his Administration exercised extensive policy measures

authorizing the use of military force [hereafter, AUMF] against terrorist group members

in Al Qaeda, the Taliban (who were harboring Al Qaeda in Afghanistan), and other

known or unknown terrorist suspects in the U.S. effort in the GWOT (Niday, 2008). The

Administration’s ability to conduct actions against terrorists came through the Patriot Act

of 2001, which was passed by Congress (George W. Bush, 2001).

Officially called “USA PATRIOT,” this act’s title is actually an acronym standing

for "Uniting and Strengthening America by Providing Appropriate Tools Required to

Intercept and Obstruct Terrorism” (George W. Bush, 2001, para. 2). The tools of this act

provided the administration with executive powers that Bush described will "enhance the

penalties that will fall on terrorists or anyone who helps them” (George W. Bush, 2001,

para. 3). Additionally, it paved way for the U.S. capturing of many detainees (both in

America and abroad) with suspected ties to terrorism by of classifying them as “illegal

combatants” or “enemy combatants” in the broad war on terror (Niday, 2008, p. 102).

Many of these illegal or enemy combatants were detained outside of the United States at

HABEAS CORPUS 7

Guantanamo Bay Naval Station in Cuba [hereafter, called GITMO], where lawyers from

the Justice Department advised the Bush Administration that (unlike Lincoln and

Roosevelt discussed in this paper above), domestic laws and constitutional rights were

not applicable outside the U.S. territory, and the use of the Suspension Class was

considered appropriate (Greenhouse, 2008; Niday, 2008).

IV. The U.S. Supreme Court’s Ruling of Habeas Corpus for Detainees

Like in past American history during other periods of national crisis, the national

government would eventually determine that the suspension of habeas corpus from

GITMO detainees was unconstitutional. One of the early notable rulings of the

government’s suspension of the privilege happened in 2008 in Hamdi v. Rumsfeld when

the Supreme Court examined the detention of Yaser Hamdi, a U.S. citizen accused of

aiding the Taliban, who was apprehended in 2001 in Afghanistan and being detained at

GITMO without due process or trial (Niday, 2008). The Court examined Hamdi’s

citizenship as a GITMO detainee versus the government’s authority to detain him with

suspension of his habeas corpus privilege as a citizen.

According to Niday (2008, p. 107) the executive branch argued, “no

congressional authorization is required, because the Executive possesses plenary

authority to detain pursuant to Article II…(and)…Congress has in fact authorized

Hamdi’s detention, through the AUMF.” Although the vote was split, the majority of

Supreme Court judges decided that it was unconstitutional to suspend habeas corpus from

Hamdi as a U.S. citizen (Niday, 2008). Although the decision was split, the court

deemed no U.S. citizens may be detained at GITMO or elsewhere with suspended

HABEAS CORPUS 8

privilege or right to due process. This notable case was only the beginning in the

Supreme Court’s review of habeas corpus in the war on terror.

The Suspension Clause was quickly assessed again in the Supreme Court case of

Boumediene v. Bush. Unlike the review on citizenship rights in Hamdi v. Rumsfeld, this

time the Court was considering the petition of hundreds of GITMO detainees for writ of

habeas corpus (Borchers, 2008). The Court concluded, with a 5-4 majority split, that the

writ of habeas corpus is not wholly bound by territory or citizenship (Borchers, 2008). In

an article in the Harvard Law Review, its author Tyler (2012, p. 908) provides a good

comparison to the Supreme Court majority decision and that it “concludes that once the

government transported (detainees) to American soil for military detention, (a detainees)

case became no different from those of the treasonous colonists brought upon English

soil for detention during the Revolutionary War.”

Nevertheless, for such an important case, the Supreme Court was largely split.

The majority determined that detention without trial was unlawful because detainees

were universally not afforded the right to provide proof or evidence for their defense, a

fundamental right of American justice (Greenhouse, 2008). Alternatively, there were

four Court dissenting viewpoints as well. One, while expressing the views of opposing

judges, Justice Antonin Scalia declared “devastating” and “disastrous consequences” of

the Court’s majority decision, stating “the nation will live to regret what the court has

done today,” and how the ultimate decision was not made on constitutional principles,

“but rather an inflated notion of judicial supremacy” (Greenhouse, 2008, para. 13). The

viewpoints were split between Supreme Court members that day, and they were also

divided from the viewpoints of the other branches of government as well.

HABEAS CORPUS 9

V. The Different Viewpoints of each Government Branch and My Own

The Supreme Court’s decision proved differing opinions on constitutional rights

existed between government branches. Perhaps our system of government’s designed

separation of powers with checks and balances provides just that; differences in opinion.

Article II, Section 2, of the U.S. Constitution provides the president as the nation’s

Commander-in-Chief [hereafter, CINC] over U.S. Armed Forces (Levin-Waldman,

2012). In the role as CINC, the president does “whatever is necessary to preserve, protect

and defend the Constitution” (Levin-Waldman, 2012, Chap. 2, p. 20). Ultimately in the

president’s whatever necessary duties, as we have studied in this paper during times of

national crisis, Presidents have sometimes acted in ways to protect America and its

citizens, yet as later determined -- in doing so, sometimes they did not protect certain

constitutional rights for some of the citizens.

The Bush Administration’s suspension of habeas corpus during GWOT, and in

particular, with detainees at GITMO as this paper has reviewed, has since been

determined as unconstitutional. After the Supreme Court’s final ruling, President Bush

who was clearly unhappy with their decision said, “we’ll abide by the court’s decision --

that doesn’t mean I have to agree with it,” and continuing with, “it was a deeply divided

court, and I strongly agree with those who dissented” (Greenhouse, 2008, para. 11). In

addition to the perspective of the President as CINC, Congress provides an additional

viewpoint as well.

Article I of the U.S. Constitution provides Congress with its legislative authority,

which includes when America declares wars and the passes legislation to support the

HABEAS CORPUS 10

multitude of defensive actions during periods of emergency or national crisis (Levin-

Waldman, 2012; Niday, 2008). Interestingly, as specified earlier in this paper when

President Lincoln suspended habeas corpus, it was determined by the Courts then that the

power to suspend is not the President’s power exercise; it is Congresses (White, 2012).

According to the U.S. Constitution, the Suspension Clause and habeas corpus rights are

listed in Section 9 of Article I; however Article I covers the duties of the legislative

branch -- or Congress -- not the duties of the other branches (U.S. Constitution, n.d.).

Interestingly, as reviewed in this paper, history has demonstrated times when the

executive branch acts on this legislative power, as was certainly the case with the Bush

Administration and the GITMO detainees’ suspension of habeas corpus. Except as

discussed earlier, when Congress passed the Patriot Act after 9/11, the Bush

Administration executed its authority by this Act to detain those suspected as or linked to

terrorists as enemy and illegal combatants in the GWOT. Nevertheless, our balanced

system of government and its a third branch provided an impartial viewpoint on the

executive and legislative branches protection of American civil liberties.

With Article III of the U.S. Constitution, the judicial branch has the implied

judicial reviewing authority of the Supreme Court “to determine whether acts of the

legislative or executive branches are constitutional” (Levin-Waldman, 2012, Chap. 2, p.

51). As examined in this paper, the Supreme Court nullified the executive branch’s

actions with its decisions in this paper’s two reviewed cases, Hamdi v. Rumsfeld and

Boumediene v. Bush. Throughout the history of American national government, with

regard to use of the Suspension Clause in times of national crisis, the judicial branch has

continued to serve as a stable base for our system of government to stand on. It has

HABEAS CORPUS 11

accomplished the reversal of unconstitutional acts, which denied civil liberties like

habeas corpus at GITMO. Interestingly, even within the Supreme Court (who serves as

an impartially appointed Court that is not elected), there can be differing viewpoints.

Likewise, within the democratic processes of the other two branches, the majority within

judicial review weighs court decisions and at the majority rules. Although our

government represents the best interests of the people in America, as a voting American

myself, I too hold my own viewpoint on all we have assessed in this paper thus far.

I believe the suspending of habeas corpus during times of war is an acceptable

means if only validated by Congress. As noted above, the Founders designed the

constitutional mechanism of the Suspension Clause within Article I, which is the portion

of our Constitution that belongs to Congress. The founders specified that the habeas

corpus right of citizens will never be suspended, unless extreme circumstances exist

(explicitly as specified in Article I with their careful choice in using the words of

rebellion, invasion, and public safety as the only causes of suspending ones right to due

process) (U.S. Constitution, n.d.). However, as we reviewed in our examples when

habeas corpus was suspended in history, especially in modern times in the GWOT, the

executive branch caused the use of the Suspension Clause under his role as CINC.

While I agree with the President’s duties as CINC, I also feel a universal truth

remains that Congress holds the constitutional right to suspend habeas corpus. I feel the

Founders purposefully placed such power in the branch that was the largest, likely

knowing it would take deliberate compromise to agree in denying such a fundamental

right like the right to due process in America’s justice system. National security is

certainly a serious cause to provoke the consideration of detaining suspects without trial,

HABEAS CORPUS 12

but I feel it to be a cause that the Founders wanted the legislative branch (representatives

of the States and its people) to be the ones to weigh such a hefty decision. Like Congress

declares war, my belief is that Congress is the branch that should declare when to

suspend habeas corpus. I also believe our balanced government (especially the Founders

addition of the judicial branch to it) has helped annul certain times in history when the

executive branch has used the Suspension Clause and its authority wrongly.

Conclusion

In summary, this paper studied the writ of habeas corpus from its early English

Parliamentary beginnings, and followed how the Founders wove it into the fabric of

American tradition by including it into the U.S. Constitution. This paper also examined

two historical accounts of how Presidents Lincoln and Roosevelt used their executive

power to suspend its privilege, before later assessing how today’s GWOT has caused the

rights of habeas corpus to be withheld again by executive authority. By considering the

U.S. Supreme Court’s ultimate rulings of the Suspension Clause in contemporary times,

this paper revealed how the Court reversed suspension and returned habeas corpus to

GITMO detainees being confined without it. Finally, this paper explored each branch of

government and their roles and perspectives as it relates to habeas corpus rights of

detainees and compared it to the analysis of this author’s personal viewpoints of how

national dangers and emergencies might impact the suspension of civil liberties like

habeas corpus and the right to due process.

Despite the constitutional protections that our American civil liberties may have,

the U.S. government unconstitutionally suspended the fundamental right of habeas corpus

HABEAS CORPUS 13

during the detainment of enemy and illegal combatants in the GWOT. However, the

unyielding nature of American government that was established by our Founders still

endures today. It remains strong because of its distinctive characteristic of checks,

balances, and separation of powers to preserve the rights constitutionally declared. While

protecting the U.S. Constitution, the government also serves to bring balance and control

back and helps to restore civil liberties when they may be taken away. And as our

balanced system of government has restored habeas corpus in both the past and present,

its steadiness continues strong for those potential challenges that may come next in the

future of the American national government.

HABEAS CORPUS 14

References

A brief history of Habeas Corpus. (2005, March 9). BBC News. BBC. Retrieved from

http://news.bbc.co.uk/2/hi/uk_news/magazine/4329839.stm

Borchers, P. J. (2008). The Conflict of laws and Boumediene v. Bush. Creighton Law

Review, 42(1), 1-27. Retrieved from Academic Search Premier (EBSCOhost)

database.

Farrell, S. & Rohde, S. (2010, July 20). The origins of Habeas Corpus. Truthout.org.

Retrieved from http://truth-out.org/archive/component/k2/item/90778:the-origins-

of-habeas-corpus

George W. Bush signs the Patriot Act. (2001, October 26). This day in history. History

Channel. Retrieved from http://www.history.com/this-day-in-history/george-w-

bush-signs-the-patriot-act

Greenhouse, L. (2008, June 13). Justices, 5-4, back detainee appeals for Guantanamo.

The New York Times. Retrieved from

http://www.nytimes.com/2008/06/13/washington/13scotus.html?pagewanted=all

&_r=0

Hashimoto, E. (2013). Reclaiming the equitable heritage of Habeas. Northwestern

University Law Review, 108(1), 139-186. Retrieved from Academic Search

Premier (EBSCOhost) database.

Japanese Americans and internment. (n.d.). The war. PBS. Retrieved from http://www-

tc.pbs.org/thewar/downloads/japanese.pdf

Levin-Waldman, O. (2012). American Government. Retrieved from

https://content.ashford.edu/books/AUPOL201.12.2

HABEAS CORPUS 15

Niday, I. A. (2008). The War against Terror as War against the Constitution. Canadian

Review Of American Studies, 38(1), 101-117. Retrieved from Academic Search

Premier (EBSCOhost) database.

Tyler, A. (2012). The forgotten core meaning of the Suspension Clause. Harvard Law

Review, 125(4), 901-1017. Retrieved from Academic Search Premier

(EBSCOhost) database.

U.S. Constitution, Article I. (n.d.). Legal information institute. Cornell University Law

School. Retrieved from http://www.law.cornell.edu/constitution/articlei

White, J. W. (2012). The Lincoln Administration and the Supreme Court during the Civil

War: A Letter by Attorney General Edward Bates. Journal Of Supreme Court

History, 37(3), 261-265. doi:10.1111/j.1540-5818.2012.01295.x. Retrieved from

Academic Search Premier (EBSCOhost) database.