Introduction
The right to equal treatment before the law is a major issue in today’s society. Following the September 11 attack, it is alleged that many governments have been detaining and releasing suspects without charges or prosecution. However, the subject of debate has been the right interpretation of the habeas corpus.
People want to know its meaning and implication, its proper consideration, and/or when it can be suspended for other provisions within the law. Thus, this paper demonstrates the constitutional and statutory provisions of the habeas corpus, its historical evolution, its current applicability and relevance in the United States. It also presents the rightful interpretations as expressed by the Supreme Court, the Congress, government leaders, academic commentators, and the popular media. It also gives an opinion of the subject.
Habeas Corpus
Habeas corpus is a civil liberty that requires any person to be given a hearing before a judicial court before he or she is detained (Gregory, 2011). This statute protects citizens from unlawful detention and illegal imprisonment. It demands that every detention must be examined in a court of law to ascertain its legality.
Nevertheless, this injunction does not establish any blame or innocence of the accused person (Kovarsky, 2013). If the court confirms the legality of the detention, the law demands that the accused be produced for trial. Courts cannot hear petitions that are made after the person has been discharged. The constitution further provides for the provisions under which this statute can be suspended. These conditions are contained in Art. 1, S. 9, No. 2, of the US constitution.
Historical Evolution of Habeas Corpus
Habeas corpus was first documented around mid-thirteenth century in England, although the original use may date back much earlier. Some people trace its first use to the Anglo-Saxon times. The Habeas Corpus Act (HCA) was assented into law in 1679. At its beginning, habeas corpus was mainly intended to make the state bring a suspect to court to respond to a pending trial (Jones, 2014).
The kings then usurped it for political reasons. However, as years advanced, changes in political climate and increased demand for protection of civil liberties began transforming this injunction. Gradually, it became a law for protecting persons against illegal imprisonment by the authorities. Thus, what started as a weapon for the state developed to a civil liberty for all citizens (Gregory, 2011).
In England, habeas corpus was extensively used in the Magna Carta in a case that was petitioned by the English property-owners against King John. As a common law, it is stipulated that a free person can only be arrested, detained, or banished from the land upon lawful determination (Kasper, 2011). Thus, any detention was to be arrived at through a judicial inquiry. After this case, the concept of habeas corpus was expanded to imply the fundamental freedom of every person against any illegal detention.
In the US, it was incorporated in 1789. Moreover, it was adversely mentioned in 1985 in a case concerning Hurricane Carter who was serving a jail term for crimes he had allegedly committed. His first petition was rejected by the state court in 1974. In 1985, the federal court withdrew his imprisonment. In November 1985, the court ordered his release based on habeas corpus.
Instances from the US Records of the Deferment of Habeas Corpus and their Current Applicability
Habeas corpus is a significant civil liberty in the US. Its current applicability remains a fundamental law for everyone who is illegally detained. To the American people, it presents the basic principle that any imprisonment that is not examined in the court of law is unlawful. Thus, people can challenge it through judicial petitioning (Gregory, 2011).
The constitution provides a room for exceptional provisions that supersede this injunction. In the United Kingdom, these provisions are provided for in ‘The Anti-terrorism, Crime, and Security Act (ACSA)’. In the US, they are outlined in clause two of Article 1, Section 9. Most importantly, the suspension of this court order can only be granted by the legislature depending on political considerations (Neuman, 2010).
The first suspension of the habeas corpus in the US was witnessed in 1861. President Abraham Lincoln ordered security agents to arrest anyone who was in some way deemed to be a threat to the social stability. In 1996, the legislature ratified the Anti-terrorism and Effective Death Penalty Act (AEDPA), which late led to the creation of a suspension clause. However, the constitutionality of this clause was challenged in Boumediene v. Bush case (Neuman, 2010).
The judicial bench ruled that the clause was not a complete suspension, but a review of the court order. At the dawn of 2006, the upper house suspended the injunction of habeas corpus of non-residents of the United States through the Military Commissions Act (MCA). This provision allowed the Bush administration to continue detaining persons indefinitely at Guantanamo.
The Relevance of Habeas Corpus in the Contemporary US Situation
Following the passing of MCA in 2006, the current US only recognizes the privileges of habeas corpus for the residents of the country. Practically, this provision locks out non-residents from the petition. In fact, the US government has proceeded to detain indefinitely any legal residents that it deems enemy combatants.
However, the original intention was to allow the government to detain unlawful enemy combatants who were thought to be dangerous to the nation. While habeas corpus remains a fundamental freedom in the US, the executive continues to unlawfully detain persons it labels ‘dangerous’. By taking them to Guantanamo, the Bush administration had in effect stated that such persons could not be granted the legal procedure because they were held outside the sovereignty of the US.
The US Highest Court’s Interpretation of the Right to Habeas Corpus
In Boumediene v. Bush case, the US extreme court ruled that all prisoners, including opponent combatants who had been held in Guantanamo had the liberty to the habeas corpus. It also challenged the validity of MCA by declaring it unconstitutional in its mandate to suspend this injunction (Huq, 2014). This conclusion was the popular view of the court.
However, Judge Scalia and his colleagues asserted that everything was contained in the Detainee Treatment Act (DTA). Therefore, the case did not need the intervention of the court. Even so, it was difficult to assess who was not an enemy combatant because some acts of the released persons had shown otherwise. The fourth Judge, Chief Justice Roberts, claimed that the detainees had been granted adequate substitute to the judicial process.
Perspectives of Habeas Corpus
The Role of the President as the Commander-In-Chief
One important thing in the US constitution is that the military chief cannot suspend the injunction of habeas corpus. If there are cases of invasion, the law gives the legislature, and not the military chief, powers to proclaim the suspension of the statute. Thus, the president has no authority to suspend the civil mandate unless the legislature delegates such powers (Howe, 2014).
The Role of the Congress
The Congress is the only body under the US Constitution that is legally allowed to suspend habeas corpus (Newman, 2010). There are at least four instances it has done so. In 2006, it enacted the MCA, which revoked the court order of habeas corpus for any dangerous non-citizen and enemy combatant. Thus, through the MCA, the Congress limited the privileges of habeas corpus to legal residents of the country. In 2005, the Congress endorsed the DTA, which authorized military agents to temporarily hold enemy combatants (Suleman, 2006). Further, through the AEDPA, the Congress gave exceptions under which habeas corpus could not be petitioned.
The Role of the Supreme Court
The Supreme Court has a fundamental role of protecting civil liberties. It is granted powers under the constitution to ensure that primary human liberties are preserved. Further, it plays an important role in checking the manner in which civil liberties are handled by courts. Thus, if it is not protected, the judicial philosophy behind habeas corpus is that it has the potentialities for undermining the orderly administration of justice, hence awakening injustices for other civil liberties.
Views of Administration Officials, Educational, and Media Critics
Habeas corpus is certainly a judicial procedure that is highly debated by both the educational and media analysts. On one end, the media and scholars have praised it as a ‘great writ’. On the other end, some commentators such as Michael Zander have rubbished it as merely a mythical status. In particular, Boumediene v. Bush case provided a perfect avenue for these commentators to give their own interpretations of the statute (Covarrubias, Watson, & Lansford, 2009).
For some government officials, habeas corpus is simply a hideout for criminals who want to use the judicial procedure to stay free. This observation reveals perhaps why people who are arrested are immediately labeled ‘enemy combatants’. Apparently, majority of government officials see it as a bothersome statute.
My Personal Reflection
Habeas corpus is a fundamental legal procedure that is recognized under the international human rights stipulations for safeguarding individual freedom against injustices. Irrespective of where one is, he or she is entitled to this writ. While the US government was justified to make arrests following the September 11 terror, holding detainees indefinitely without trial was a breach of the fundamental human rights. The government needs to go back to the very first reason that the founders of the nation had evoked the spirit of habeas corpus (Primus, 2010). In my view, it was intended to protect and preserve the fundamental human dignity against unlawful imprisonment. The legislature and the executive should come up with better ways of handling ‘enemy combats’.
Conclusion
The study has analyzed the habeas corpus in terms of its history, evolution, and its applicability and significance in the US government. The paper has also revealed how the Supreme Court ruled that all persons, whether non-residents or enemy combatants, had the right to this legal procedure. However, the US constitution also allows the suspension of the statute. However, in my opinion, the study has maintained that the judiciary remains the judicial custodian of the habeas corpus as stipulated in the HCA.
Reference List
Covarrubias, J., Watson, P., & Lansford, T. (2009). America’s War on Terror. Farnharm: Ashgate Publishing Ltd.
Gregory, A. (2011). The Tissue of the Structure” Habeas Corpus and the Great Writ’s Paradox of Power and Liberty. Independent Review, 16 (1), 53-91.
Howe, Z. (2014). Detainment Power: The limit of the President’s Power to Suspend Habeas Corpus during Military Conflicts. Havard Journal of Law and Public Policy, 37(2), 677-694.
Huq, Z. (2014). Habeas and the Roberts Court. University of Chicago Law Review, 81(2), 519-608.
Jones, N. (2014). The birth of democracy. Britain, 82(5), 56-64.
Kasper, T. (2011). The Influence of Magna Carta in Limiting Executive Power in the War on Terror. Political Science Quarterly, 126(4), 547-578.
Kovarsky, L. (2013). A Constitutional Theory of Habeas Power. Virginia Law Review, 99(4), 753-810.
Neuman, L. (2010). The Habeas Corpus Suspension Clause after Boumediene V. Bush. Columbia Law Review, 110(2), 537-578.
Primus, B. (2010). A Structural Vision of Habeas Corpus. California Law Review, 98(1), 57.
Suleman, M. (2006). Detainee Treatment Act of 2005. Harvard Human Rights, 19(1), 257-266.