Home > Free Essays > Politics & Government > Government > Habeas Corpus and the War on Terror

Habeas Corpus and the War on Terror Essay

Exclusively available on IvyPanda Available only on IvyPanda
Updated: May 27th, 2019


The fight against terrorism has taken many forms, which include the United States setting up a Naval Base at Guantanamo Bay Cuba. The prison has been in the spotlight, and controversies about how it is operated have increased every day. The prison was set up to reduce terrorists attack, but the purpose is worth assessing.

There is overwhelming evidence, which suggests that the prison has been used to deny individuals several rights. This essay seeks to show how illegal the rules that govern the prison are. With much elaboration, the violations of key civil liberties and the denial of the writ of habeas corpus will be highly discussed in this essay (Terry, 2008).

The search for evidence to show several individuals rights have been violated will embark on a clear understanding of the writ of habeas corpus. The procedure governing the application of habeas corpus and how it has been violated can be identified upon extensive comprehension of its origin. There are various rules that regulate the administration of the writ of habeas corpus.

The writ of habeas corpus ad subjiciendium, has focused on protecting individuals against denial of the right to personal liberty. The writ has its origin in England’s Common law. The writ was administered in the Kings Bench Division in England. In the recent years, many of the American lawyers trace the writ back to the period after the Second World War, whereby the prisoners detained after the State courts raised constitutional issues conforming to violation of their personal liberty (Foley, 2008).

The historical use of the writ of habeas corpus has been to defend civilians against false detention by the state. It was invoked in situations whereby the executive wing was detaining individuals without letting the judicial due process take effect. At later stages of the writ, the mechanisms of the writ substantially changed to encompass two civilians in a dispute. It was also clear that the representatives of the detainee were free to exercise the writ by petitioning court.

Habeas corpus is an order that the court issues to the custodian of the prison to appear, and state the basis of the detention showing its legality. The invoking of the order takes effect if the prison custodian has materially failed to show cause for detention. The failure means that the body of the detained must be produced in court, and the court subsequently releases the detained. It is the right of the detained to sue the State or any other party involved in detention for damages to compensate him/her for false detention (Jackson, 2010).

Disobedience of the writ by the prison custodian amounts to contempt of court, and the custodian is sentenced accordingly. Habeas corpus is a constitutional right, which is the only remedy that the Constitution of the U.S. has expressly provided. Article 1 Section 9 Clause 2 provides that the writ of the habeas corpus must not at any material time be suspended. The only exception whereby the writ may be denied is in cases of invasion or rebellion causing unrest and threatening the public safety (Foley, 2008).

The Congress has powers to confer the courts broader jurisdiction than the constitutional requirement. The protection of the American citizens against the State’s detention is the vital role of the writ of the habeas corpus. The main rules governing the usage of the writ of habeas corpus are jurisdiction, substantive rules and procedural rules.

This right is a constitutional right which ought to be enjoyed by all Americans and non-Americans provided one is on the United States soil. The American hypocrisy in the fight against terrorism has been illustrated by the existence of Guantanamo Bay. The American government has used war on terrorism to deny terrorism suspects the right to personal liberties.

The Guantanamo Bay justice system seems well planned to infringe people’s rights. The first question that every reasonable person asks when Guantanamo Bay is mentioned is why the American Government would establish a prison in another place instead of having it in America. The answers may be many, but the strategy was to take the detainees out of jurisdiction the American Constitution, courts and the right to habeas corpus (Jackson, 2010).

In every detention made in Guantanamo Bay, it is clear that the detainees are outside the confines of the American Constitution. The new justice system at the Bay is to the effect that attention is put on the dealing with the terrorists without due observe of the rules of a sound justice system. In many instances, the detainees taken to Guantanamo Bay are citizens of other countries and America hence the American Government seems to have violated many rights so as to alleviate terrorism.

It has become hard to ascertain the rules that the tribunal in Guantanamo Bay used to guarantee individuals arrested their rights. The capturing of the wrong people and getting the wrong ways of gathering information has made it too hard to fight terror. The American officials at Guantanamo Bay have continuously used undisciplined and inhuman means to collect information (American Constitution Society for Law and Policy, 2012).

The wrong investigative methods used by the Guantanamo Bay officials have been extremely ineffective in identifying the actual terrorists. There is ample evidence, which shows that one of the methods used to get information is torture. The rules of the American judicial practices have been profoundly ignored.

The lawless system of operation started during the Bush regime, and it aggravated after the September 11th Twins Towers bombing whereby the event suggested use of all means to combat terrorism. Guantanamo Bay is said to be a chain of illegal prisons opened by President Bush in a panic to deal with the threat of terrorism. Abusive military interrogation and torture was continuously used in these prisons. The maximizing of secrecy and facilitating extrajudicial detentions has been a serious human rights abuses (Terry, 2008).

In Guantanamo Bay, the writ of Habeas corpus has been substantially ignored, and individuals who are presumably innocent are tortured hence surrendering false information in fear of their lives (Resnik, 2010).

The spirited fight to give the American people and others detained in Guantanamo Bay was witnessed in the Supreme Court decision in the case of Boumediene v. Bush whereby the Court stated that detainees in Guantanamo Bay had a right to access the United States Courts for remedies. In the highly celebrated part of the decision, court invalidated the legislation seeking to suspend the right to habeas corpus to non-citizens.

In the reasoning of the Court, such a move by the Congress was unfair and unjust since the detained prisoners had a right to a fair hearing. The Congress was said to act beyond its mandate by seeking to legislate so as to deny individuals’ their right to access justice. From the said time when the verdict was delivered, there have been numerous legislations challenging false detention in Guantanamo Bay (Fallon & Meltzer, 2007).

The executive is said to have become uncontrollable after the event of the September 11th bombing whereby lack of respect to inherent rights was witnessed. The arbitrary arrests by the executive security operatives continued to torture people and detain them in Guantanamo Bay for years.

The aforementioned ruling is thought to have been a stride in safeguarding the personal liberty of the persons detained in Guantanamo Bay. The ruling was thought to act as a relief, but it is reported that many individuals are still tortured and detained illegally without being given a chance to talk to their relatives or access legal representation in the tribunals or any court of law (Foley, 2008).

The different conflicts presented in challenging the false detention of individuals at the Guantanamo Bay have not been resolved in any way, and the vice is still continuing. In addition to the United States opening other prisons, such as Bagram in Afghanistan whereby false detention and torture is the order of the prison, habeas corpus has received greater challenges. The jurisdiction issue has made the vice continue in other prisons. The writ of habeas corpus can only be issued by the court.

There are several Bills by the Congress after the landmark ruling in the case of Boumediene v. Bush. The Bill among other things seeks to have a narrow interpretation of the ruling in the case of Boumediene. The habeas corpus writ though expressly guaranteed by that case the Congress sought to restrict judges from invoking it. The proposed legislations have substantially sought to limit the judge’s power to inquire about the legality of a detained person (American Constitution Society for Law and Policy, 2012).

The Legislations by Congress also seeks to restrict district judges from exercising the powers they have, and government should be given the final chance to assess the evidence before a prisoner is ordered to be released. The state’s interests in the detention of individuals in Guantanamo Bay have been further enhanced by having stringent rules, which govern the issuing of the writ of habeas corpus.

However, it faces political changes and the battle between the judiciary, executive and the Congress has been at the expense of the suffering detainees in Guantanamo Bay (Hafetz, 2011).

There are many individuals who have faced their death before the court has intervened. The application of the Constitution right of habeas corpus has faced hurdles despite the clear importance demonstrated by different rulings. The erosion of the writ of habeas corpus is not to be considered in isolation of other factors since its violation paves way for the infringement of other civil liberties.

The presence of state power in denying individuals their constitutional rights is shocking. The use of the said State power is witnessed in the United States national security policies. The very security policies designed to protect the citizens are consistently taking them (American Constitution Society for Law and Policy, 2012).


The writ of habeas corpus is a fundamental constitutional right that focuses on giving the detainee the right to personal liberty whenever it has been illegally taken. The war against terrorism and the opening of Guantanamo Bay have been a significant avenue whereby individual‘s personal rights have been violated.

Various Supreme Court’s rulings have challenged false detention stating that individuals detained in Guantanamo Bay have a right to challenge the false imprisonment. The rules governing the writ of habeas corpus have proved to be rigid in denying an individual the right to habeas corpus. It follows that the Constitution right of habeas corpus has been ignored and limited by legislations under the guise of fighting terrorism.


American Constitution Society for Law and Policy. (2012). Habeas Corpus and the War on Terror. Web.

Fallon Jr., R. H., & Meltzer, D. J. (2007). Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror. Harvard Law Review, 120(8), 2031-2112.

Foley B.J. (2008). Guantanamo and Beyond: Dangers of Rigging the Rules. The Journal of Criminal Law and Criminology, 97(4), 1009-2007.

Hafetz, J. (2011). Habeas corpus after 9/11: Confronting America’s new global detention system. New York: New York University Press.

Jackson, A. L. (2010). Habeas Corpus in the Global War on Terror: An American Drama. Air Force Law Review, 65263-288.

Resnik, J. (2010). Detention, the War on Terror, and the Federal Courts. Columbia Law Review, 110(2), 579-685.

Terry, J. P. (2008). Habeas corpus and the Detention of Enemy Combatants in the War on Terror. JFQ: Joint Force Quarterly, (48), 14-18.

This essay on Habeas Corpus and the War on Terror was written and submitted by your fellow student. You are free to use it for research and reference purposes in order to write your own paper; however, you must cite it accordingly.
Removal Request
If you are the copyright owner of this paper and no longer wish to have your work published on IvyPanda.
Request the removal

Need a custom Essay sample written from scratch by
professional specifically for you?

801 certified writers online

Cite This paper
Select a referencing style:


IvyPanda. (2019, May 27). Habeas Corpus and the War on Terror. https://ivypanda.com/essays/habeas-corpus-and-the-war-on-terror/


IvyPanda. (2019, May 27). Habeas Corpus and the War on Terror. Retrieved from https://ivypanda.com/essays/habeas-corpus-and-the-war-on-terror/

Work Cited

"Habeas Corpus and the War on Terror." IvyPanda, 27 May 2019, ivypanda.com/essays/habeas-corpus-and-the-war-on-terror/.

1. IvyPanda. "Habeas Corpus and the War on Terror." May 27, 2019. https://ivypanda.com/essays/habeas-corpus-and-the-war-on-terror/.


IvyPanda. "Habeas Corpus and the War on Terror." May 27, 2019. https://ivypanda.com/essays/habeas-corpus-and-the-war-on-terror/.


IvyPanda. 2019. "Habeas Corpus and the War on Terror." May 27, 2019. https://ivypanda.com/essays/habeas-corpus-and-the-war-on-terror/.


IvyPanda. (2019) 'Habeas Corpus and the War on Terror'. 27 May.

Powered by CiteTotal, best essay bibliography generator
More related papers