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Civil Liberties, Habeas Corpus and the War on Terror Essay

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Updated: Nov 20th, 2019


The act in which a person legally challenges unlawful incarceration is called Habeas Corpus. In the American context, Habeas Corpus is about correcting the violations of human liberty by conducting a judicial inquiry into the legal grounds on which an individual has been detained by a state or federal authority. The American political and social culture revolve around the protection of civil liberties and rights that are manifested in the Declaration of Independence, The Constitution and The Bill of Rights.


The Habeas Corpus Act was first used in England as common law. It was to be found in the Magna Carta though in an ambiguous form. Only the king had the authority to convene a jury. However, King Henry never granted this to the private courts. The petitioner had the privileges of withdrawing a case from the common courts to be tried in the royal courts.

Further changes occurred on the Act during the reign of King Edward 1(Halliday, 2010). In America, the writ can be traced to the passing of the Judiciary Act of 1879 by the Congress. However, in the American context, Article 1 of the American Constitution withdraws this writ from an individual if the person has been proved to have conspired either in person or by affiliation to engage in a rebellion or invade public safety(Wert &Lawrence, 2011).

Wert and Lawrence argue that much as Habeas Corpus is the cornerstone of the American legal system and the principal check on the federal arbitrary power, it has been compromised by the political structures and today it stands out as more of a political tool than a measure of an individual’s legal protection.

A possible secession by Maryland from Washington DC had to be averted so as not to expose the nation’s capital to enemies. Subsequent events further led to the House of Representatives’ decision that supported Lincoln for his suspension of the Habeas Corpus. This decision was reversed in 1866.

This was due to the absence of any threat to the Confederation. The Supreme Court restored the Habeas Corpus throughout the nation and declared the military courts illegal in areas where civilian courts could operate .In Ex Parte Quirin, a case during World War 2 which involved German saboteurs who disembarked on submarines in New York and Florida, the military commissions in charge of the trials sentenced the saboteurs to death. The Supreme Court used the “enemy combatant’s” bill to justify this.

Upon the application of Habeas Corpus by one of the defendants, the court denied him application in the reason that his status of ‘’unlawful combatant’’ did not allow him full citizenship rights on which he had applied for Habeas Corpus. This threw the situation into more controversy as to whom the Habeas Corpus did not apply as Milligan was an American citizen (Wert & Lawrence, 2011).

In the history of contemporary politics, President Bush suspended the Habeas Corpus using the Military Commission Act of 2006 (Gerald et al, 1997). In the light of the war against terrorism, the question tests the morality of the institutionalization of this act by the regime of Bush. These writs are America’s cornerstones of the rule of law (Lijphart, 1977). According to the U.S Supreme Court, five justices comprising of Justices Kennedy, Stevens, Souter, Ginsburg and Breyer attempted to restore the originality of the writ of Habeas Corpus.

They also tried to reassert America to its original core constitutional principles. They removed the tenets of the Military Commissions Act and the Detainee Treatment Act. The five questioned the historical and political influences over this bill in that it had led to the creation of the Guantanamo Bay.

In contravention to the constitutional requirement that any prisoner held by any American authority had to be entitled to a fair trial before imprisonment, the detainees who had never seen justice for over six years got a chance to be presented in a court of law.

The five Justices used the following principles: Habeas Corpus is a historical right and based on the proceedings of Rasul vs. Bush (544 U.S, 466, 2004) and its final decision, the five Justices faulted the decisions made by Bush’s administration in relation to the Habeas Corpus and argued that Guantanamo Bay is a territory of the US.

That led to the unanswered question of whether Guantanamo Bay was a product of the executive’s desire to create an empire of lawlessness away from the scrutiny of the judiciary under the pretext of safeguarding the American people and interests. In my perspective, a decision by the Bush administration had to be made in order to address the situation and the administration had to find a way of addressing the situation and still free itself from legal scrutiny.

This must have been the reason behind the lease of land outside the American territory. In denying the detainees their constitutional rights to Habeas Corpus, Bush’s administration came up with CSRT and maintained that it met all the constitutional requirements (Halliday, 2010). The five justices argued that the constitution stipulated that “…..for a court that conducts the Habeas Corpus proceedings must be able to correct the errors that occurred during the CSRT proceedings……..’’in restoring the Habeas Corpus.

It was agreed that the CSRT had been marred by prejudicial intentions and all its decisions were unconstitutional .The administration knew the odds that stood against it and in order to find legal grounds of operations, the legal system of operation had to be instituted and it did this in the name of CSRT. Another factor that the five considered was the justice of time that the detainees had been denied for a period of six years.

It was ruled that an individual under detention by a previous executive order was entitled to a fresh review of the trial within the shortest time possible. However, despite the unilateral agreements, there was a point of dissent from within the judicial systems. Justice Scalia, Chief Justice Thomas and Justice Alito charged the five with ‘’manipulation of the writs of Habeas Corpus using the right of judicial supremacy’ thereby endangering the country.

This was clearly in support of the past actions of Bush’s administration. Wert and Lawrence (2011) argue that in the era of war against terrorism, Habeas Corpus has been waxed and waned in harmony with majority politics (Wert & Lawrence, 2011).


It remains evident that the role of the president as commander in chief of the armed forces was used both in the Lincoln era and in Bush’s administration to facilitate the immediate duties of the political power of the times( Boix, 2003). The Congress is always fast to grant the executive the right to suspend this historical writ. The Bourmediene vs. Bush case was the most recent attempt by the judiciary to curtail the executive’s interference. The constitution showed the need for a strong judicial system.


Boix, C. (2003). Democracy and Redistribution. New York, USA: Cambridge University Press.

Gerald et al. (1997) .The People’s Law Dictionary. Kansas City, USA: General Publishing Group.

Halliday, P. (2010). Habeas Corpus: From England To Empire. Harvard, United Kingdom: Belknap Press.

Lijphart, A. (1977). Democracy in Plural Societies: A Comparative Exploration. New Haven: Yale University Press.

Wert, J., & Lawrence, S. (2011). Habeas Corpus In America: The Politics Of Individual Rights. Kansas, USA: University Press of Kansas.

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