Law - Criminal Research Paper: Final Assignment

Paper Outline

Casey Steadham

Liberty University

GOVT480-D05

May 1, 2023

To what extent is the right of Habeas Corpus Limited in the context of the War on Terror?

Abstract

Grave human rights abuses caused by the "war on terror" have sparked an increase in human

rights litigation. The right of habeas corpus is protected under the American Constitution as it

prevents illegal detention. There has been heightened debate on whether enemy combatants and

illegal combatants who are likely to pose a threat to public safety are entitled to habeas corpus.

Introduction

Possessing personal freedom is the most crucial human right. The right to avoid being

detained without a court order can never be violated in a civilized society. Freedom from

arbitrary arrest and detention is a component of personal liberty (Frande et al., 2022). One of the

fundamental protections of personal freedom in English and American law is made possible by

the writ of habeas corpus, which shields people against unjustified detention by the government.

The government suspends the right to habeas corpus in the fight against terrorism in order to

protect public safety.

Body

A. The right of habeas corpus dates back to many centuries when personal liberty was not so

valued (Siegert, 2022).

I. Historical evolution of Habeas Corpus in the world

II. History of Habeas Corpus in the Colonies

III. Historical evolution of Habeas Corpus in America

B. The government must emphasize the importance of fighting against the United States'

enemies while defending the suspension of habeas corpus in light of the ongoing war on

terror (Hajjar, 2019).

I. Restrictions on the Use of habeas corpus in the Context of the War on Terror

II. The significance of restricting Habeas Corpus in terrorism situations

III. The constitutional basis that supports the habeas corpus restriction

IV. The Supreme Court's stance on the habeas corpus imitation

C. The right to habeas corpus is a fundamental right, and before limiting it, states must adopt

the necessary safeguards (Frande et al., 2022).

I. The derogation's scope must be directly related to the urgency of the circumstance.

II. The emergency must be serious and pose a risk to the regular practices used in the

administration of justice.

III. The measures of derogation must not go beyond what is strictly required by the

necessities of the situation.

IV. The state's choice to impose a derogation must be closely examined internationally.

D. Different branches of government play different roles in cases of removing or limiting the

right of habeas corpus in the context of the war on terror (Khan, 2022).

I. Executive Branch

II. Judiciary Branch

III. Legislative Branch

E. The constitutional right to Habeas Corpus extends to both United States citizens and non-

citizens (Khan, 2022).

I. What are the implications of derogation to citizens?

II. What are the implications of derogation to non-citizens?

Conclusion

In the context of the war on terror, the government suspends the right of habeas corpus to

preserve public safety. However, to defend their civil rights and liberties, US citizens primarily

rely on the postulates of habeas corpus. As a result, any deviation from these rights must be as

limited as possible. A deviation from the right to habeas corpus only results in the suspension of

additional liberties and rights, the deterioration of democratic societies over time, and ultimately

the collapse of democracy.

References

Frände, D., & Yli-Hemminki, E. (2022). Habeas Corpus. In Elgar Encyclopedia of Crime and

Criminal Justice. Edward Elgar Publishing.

Hajjar, L. (2019). The Counterterrorism War Paradigm versus International Humanitarian Law:

The Legal Contradictions and Global Consequences of the US “War on Terror”. Law &

Social Inquiry, 44(4), 922-956.

Siegert, C. J. (2022). From the Magna Carta to the MCA: The Development of the Right to

Habeas Corpus for Enemy Combatants of the United States. Bellarmine Law Society

Review, 12(1), 36-53.

Khan, B. (2022). JUDICIAL REVIEW OF COUNTER-TERROR LEGISLATION: THE

JURISPRUDENCE OF THE UNITED STATES SUPREME COURT AND THE

SUPREME COURT OF PAKISTAN. Pakistan Journal of Social Research, 4(04), 1010-

1018.