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Civil liberties, habeas corpus and war on terror Research Paper

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Updated: Jun 28th, 2019


Habeas corpus is one of the legal principles, which constitute the foundation of law in America. The principle enables an individual to challenge detention. This is a vital principle in law whose application has largely depended on regimes, the governance approach and security challenges that a government encounters.

Various regimes have applied the principle in different ways (Halliday, 2011). The variation in the application has been controversial with the onset of war on terror (WON). Legal hurdles have impaired WON as regimes seek to hold enemy combatants without any trial. However, the presence of this clause limits the ability of authorities to detain suspects without initiating hearings (Fiss, 2006).

The congress and the president have the capacity to lift the right to habeas corpus. The application of this right is largely dependent on the security challenges that a regime encounters. As such, the suspension of habeas corpus depends on the security challenges that a government is encountering.

Definition of habeas corpus

With reference to the American constitution, habeas corpus is a vital principle of freedom. The terminology means ‘to avail the body’ in Latin. Consequently, it enables individuals to access freedom from detention without any trial. The American constitution affords its citizenry with the right to plea to this legal clause.

In such cases, the American government has to answer to the court. The government has to provide concrete reasons for holding a person. Subsequently, the court determines whether the reasons provided are adequate to allow the wavering of this fundamental right. Habeas corpus in America is much similar to the corresponding law in England.

The American law emanated from the English statutes. However, there are numerous adjustments in the respective nations to suit their circumstances. There are certain reasons that lead to lifting of this right. They include rebellion and protection of public safety. Over years, the application of habeas corpus has changed with countless infringements by authorities (Hafetez, 2011).

War on terror

The WON has culminated in controversy owing to the government’s detention of civilians believed to be enemy combatants. The application of this vital principle has been violated by subsequent regimes as they seek to detain combatants. The challenge that the government encounters is the prosecution of the alleged combatants in civilian court. As such, the terror charges would not stand before judges and most of the combatants would be set free.

To prevent this, the government regards enemy combatants as terrorists. This enables the authority to detain such suspects despite the illegality of such detentions. The Bush administration encountered numerous challenges as it was holding suspected criminals without trial. Owing to this challenge, the Bush regime could not effectively execute its strategies during the WOT. Subsequently, it sought to build a holding camp in a place where the American constitution had no jurisdiction.

Guantanamo bay was constructed on land leased from the Cuban authority. As such, the American constitution had no jurisdiction. The government held terror suspects on the island without any trial. The right to habeas corpus was not applicable on this detention camp (Fiss, 2006).

Cases challenging detention

The action to hold detainees in Guantanamo was challenged severally. In Boumediene v. Bush, the court ruled that Boumediene, a Bosnia and Herzegovina national had the right to plead to habeas corpus. Consequently, his detention was illegal. The court decision culminated from 5-4 majority in the ruling.

The application of insular cases meant that the American constitution had jurisdiction in Guantanamo since America had complete authority and control over the territory. The decision by the Supreme Court resulted in subsequent cases pertaining to this right. Other suspects sought to plead to this right (Cornell University Law School 2007).

However, their efforts were curtailed by legislation. In subsequent cases pertaining to detainees held in the Guantanamo camp, the court ruled that the detention was illegal. Consequently, the government solved the impending crisis by establishing the Combatants status review tribunal. The detainees held in the camp were to face a military commission since the government ruled out trials in civilian courts (Cornell University Law School 2007).

Courts’ role in the implementation of habeas corpus

In light of the above cases, the court exercised absolute authority on the ability of any detainee to plead to this habeas corpus. The jurisdiction of the court limited the ability of the defence department to breach this right. However, to some extent the president prevailed since the detainees did not receive the right to prosecution in a civilian court.

If the proceeding were in civilian courts, most of the detainees would be set free. This would hinder the WOT since the civilian courts would set free such detainees. The government viewed the prosecution of enemy combatants in civilian courts as counterproductive (Hephaestus Books 2011).

Previous incidences of suspension habeas corpus’

The Congress and the president can exercise their authority and limit the right to plea to this right. President Lincoln did so during the civil war when part of America was under enemy forces. The suspension of this rights resulted in the establishment of military courts to deal with the rebels that wanted to seize the capital.

However, Lincoln faced an aggressive senate once it resumed from recess. The high court in Maryland overturned Lincoln decision pertaining to the right of habeas corpus. However, the president assumed the court’s decision and continued to suspend this right with regard to combatants. Once the senate resumed it passed legislation approving the president’s action. The president’s actions were necessary since American was encountering a rebellion.

According to Sir William Blackstone, one of the lords that were pivotal in the creation of this principle the King had to know of any retrains on his subjects. Once the English legal system was fully operation, the legal statues provided that the right could only be waived during a rebellion or an invasion. This is much similar to what the legal statutes in America provide. Similarly, during the Second World War the president could suspend habeas corpus.

However, the court limited the suspension of this right to only crimes that relate to war only. If habeas corpus was suspended, the applicable law only applied to crimes pertaining to invasion, enemy combatants and rebellions. In the above scenario, the courts also limited the suspension of this right. This limits the misuse of the suspension of habeas corpus (Fiss, 2006).

Congress and the president

The congress being the ultimate legislative body has the capability to determine various aspects of habeas corpus. The congress has enacted laws, which determines the application of habeas corpus. Evidently, alterations to this right mainly result from the security challenges that the nation is encountering.

The alterations have sought to approve measures to detain combatants or suspects who threaten the safety of America. The congress first altered the right to habeas corpus was during the Lincoln era, when the president suspended this right as the senate was in recess. Despite confrontations in congress, senators ratified the president’s executive order to suspend habeas corpus. The second situation, which required the suspension of habeas corpus, was during World War II (Chemerisnky, 1987).

Legal changes owing to WON

The Oklahoma and twin towers attacks are other security challenges that have culminated in the suspension of this right. The latter resulted in massive legal changes to deal with terror. However, alterations have encountered challenges if they infringe on the constitutional rights of a person.

The 2001 presidential military order sanctioned detention of individuals believed to partake in terrorist activities without any legal proceedings to prove their innocence. Legal scholars were opposed to such an order since it violated habeas corpus.

Despite the approval of detention based on terrorist suspicions, the Supreme Court proved the supremacy of the rights entrenched in the constitution through various rulings such as Hamdi v Rumsfield. Cases such Boumediene v. Bush and Hamdi v. Rumsfield had dissenting justices.

However, it was vital that the court observed the constitution. This is because habeas corpus is a basic right for any person restrained by American authorities. Consequently, suspending it without providing a detainee with a chance at justices breaches the basic rights entrenched in the constitution. Unlike in previous scenarios where the legal system shied away from upholding the law when the executive contravenes it, the court emerged as an independent organ of governance by terming the detentions unlawful (Perkins, 2004).

Personal views on habeas corpus

Habeas corpus is a key right in any free society. As such, it is vital to uphold it. Despite the complex security challenges that this nation encounters, it is paramount to ensure that all detainees have access to a legal process where they can prove their innocence. Terrorist charges should not be a basis to detain an individual without any legal procedure to try the suspect. Terror poses a massive challenge to this society.

Subsequently, on the determination of the involvement of a suspect in such activities, the suspect should face appropriate legal process. Where the suspect is extremely dangerous specialized trial procedures should apply. These include military commissions and tribunals.

The constitution of such tribunals should have civilian legal representatives who should ensure that the basic rights of a defendant are upheld. The president and the congress should also exercise caution in suspending habeas corpus since it breaches the basic rights in our constitution (Hephaestus Books, 2011).


In instances where the government suspends habeas corpus, it seeks to address certain security challenges. The details above exemplify the above assertion fully from the Lincoln regime to the Bush era. However, suspension of such a right has encountered legal challenges from courts, which have either outlawed or limited the suspension of this right.

Courts undertake a vital role in ensuring that all detainees can challenge their arrest in a court or an appropriate legal system to suit their circumstance. The congress and the president have emerged as key figures in the implementation of this right with the initial passing bills to influence its application.

Conversely, the latter issues executive orders to suspend habeas corpus which congress can ratify to ensure legality. Suspension of habeas corpus has exclusively pertained to individuals that pose a significant threat to the security of this nation. Conclusively, the suspension of habeas corpus pertains entirely to the security challenges that this nation is encountering.


Chemerisnky, E. (1987). Thinking about habeas corpus. Law Review, 37:748-789.

Cornell University Law School. (2007). Boumediene et al. v. Bush, president of the United States, et al. Retrieved from

Fiss, O. (2006) The War Against Terrorism and the Rule of Law. Oxford Journal ofLegal Studies, 26 (2): 235-256.

Hafetez, J. (2011). Habeas Corpus and the “War on Terror. Retrieved from

Halliday, P. (2011). Habeas Corpus: From England to Empire. USA: Congress Publication.

Hephaestus Books. (2011). Articles on Global War on Terror Captives’ Habeas Corpus Petitions, Including. Virginia: Hephaestus Books.

Perkins, J. (2004). Habeas Corpus in the war against terrorism: Hamdi v. Rumsfeldand Citizen Enemy Combatants. Hein Online publication, 19: 437-460.

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