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The Role of Habeas Corpus in the Constitutional Right Analytical Essay

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Updated: May 7th, 2019


Debates so far disclose that the habeas corpus brings in difficult and thoughtful issues on the American government. It is an area with heated disagreements, and that makes amendments in the Supreme Court most patent. Here, the indispensable question is on the privileges of habeas corpus.

Recent remarkable proclamations on the constitutional rights of those individuals held in perspective of the warfare on terror have revised the judicial understanding of habeas corpus. The courts understand that these enemies are unrestricted to due process rights. However, they do not precisely know how many courses of action these suspected enemy combatants are subjected to.

Meaning of the constitutional right of habeas corpus

According to constitution of the United States, habeas corpus is that any person under arrest has to be taken before a court of order for a legal action. A convene with power of a court order is made to the custodian and stresses that a detainee is brought before the judge and can be unconfined from illegitimate incarceration. The lawful right to submit an application for habeas corpus is a remedy to various unlawful confinements.

The prisoner can request for it or another individual coming for the prisoner’s assistance. The person coming for the prisoner’s aid is as a result of the detainee being under solitary confinement (Hudson, 2007). That is an exceptional form of detention where detainee is inaccessible from any human contact except prison officials only. This guarantees that all prisoners in American detainee camps have to be presented in court.

The chronological development of habeas corpus

Habeas Corpus has since the earliest era been used to coerce the look of a captive to be brought in front of a court of order. In England, during the sovereignty of King Edward I the writ was declared. A Habeas Corpus Act was passed.

It stated that any detained person by order of the king could file an application for a habeas corpus. Currently, in England the habeas corpus is employed by the superior court (Habeas corpus: From England to empire, 2010). By the era of American Revolutionary war, Habeas Corpus had been finely recognized in England and its colonies.

However, habeas corpus subsisted in the American colonies even before the approval of the constitution. The American colonial rulings ensured the availability of habeas corpus. It was later officially included United States Constitution. However, in a notable number of instances its implication was suspended and instead the military commissions were employed in trying the enemies of commandant being held United States’ detention centers (Mian, 1984).

Occasions whereby employment of habeas corpus was suspended

There are a number of recorded cases where employment of habeas corpus was suspended. In 1861, President Lincoln ordered deferment of the constitutionally sheltered right to court order of habeas corpus. He proclaimed that all the arrested enemies of commandants were going to be imprisoned without any court trials. However, once the warfare was over, habeas corpus was reestablished throughout the nation’s jurisdiction. The reestablishment was ordered by the Supreme Court (Mian, 1984).

In 2006, President Bush signed the Military Commissions Act. This act specified that an enemy of commandant was in no way going to be granted a court order of habeas corpus. Thus, it gave the president unrestricted power in performing military commissions to try the enemies of commandant being held in detention by the United States. However, it is vital to note that every captive has the right to be tried in a court of order hence the present applicability the suspension is far from one’s comprehension.

The significance of habeas corpus to the current United States’ situation

Habeas corpus is of immense relevance in the current United States’. It will ensure that the government gathers enough evidence about the actual perpetrators of war. In the process of a judgment, a detainee can release particularly useful information regarding whoever organized any attacks (Mian, 1984). In ensuring justice, only those found guilty will be prosecuted.

The U.S. Supreme Court’s analysis of the constitutional right of habeas corpus

Global war on terror led to a number of people being confined in Americas Guantanamo detention center. One of them was Lakhdar Boumediene. Since the Bush Administration had proclaimed that these enemies of commandant had no right in the American constitution, Boumediene and his fellows remained in custody (Mian, 1984).

In 2007, a panel of American judges considered Lakhdar’s habeas corpus. Justice Kennedy delivered a court judgment that constitutionally guaranteed the right of habeas corpus assessment applied to detainees detained in Guantanamo. He said that habeas corpus also applied to other enemy combatants in American jurisdiction.

This opinion was agreed upon by Justice; Ginsburg, Breyer, Souter and Stevens. Those who agreed with this opinion were five Justices. However, their opinion was opposed by four judges. Judge Robert filed a contrasting view. He was supported by three other justices that are Justice Scalia, Thomas and Alito. This opposing group preferred the application of Detainee treatment Act.

The proposing one argued that the Detainee treatment Act had botched in the provision of a satisfactory substitute for habeas corpus. As a result, Boumediene was tried in United States’ court of order. He was ordered freed of charge by Judge Richard of the Federal District Court (Mian, 1984).

The role of the president

The crucial rationale following the indefinite detention of the war on terror detainees is deep-rooted to the assertion that they battled against the United States. It is based on the alleged rejection of the Taliban to deliver Osama bin Laden. President George Bush claimed Osama to have been responsible for the attacks in America.

A point to support that claim is that Bin Laden had earlier warned his close people to return to Afghanistan. This makes the allegation moderately weak. In dealing with the issue in a modern manner, the President should have allowed the habeas corpus move. Putting the suspects under court trials would have perpetrated a better way of getting evidence to the attacks (Mian, 1984).

Evaluation of Congress’s role in deciding when habeas corpus can be perched

The congress asserted that, in suspension, the habeas corpus is not suspended but instead only the privilege of offering it is suspended. It means; a detainee can apply for it, or a detainee’s representative can do it. However, the issuing court under the direction of Congress can conclude whether to allow it its proceeding or not.

In suspension, this proceeding is not granted. It is thus vital to ascertain that these proceedings are done in an organized manner. The Congress should create a constitutional period for habeas corpus application (Neubauer, 2008).

Supreme Court’s role in defending civil rights

Supreme Court’s key responsibility is to promote and protect the civil rights of all individuals under the United States’ jurisdiction. Before throwing out the constitutional right to habeas corpus on the enemy of combatants, the court considered the requirement for them to be face justice before they were convicted (Cosmos of Humanists Pr. Hudson, 2007).

Completely denying them this right would have been against the Constitution. Furthermore, this would indicate the government is detaining custodians who have not been proved guilty. Again, this would be denying them their right to be tried before a court of order..

Ideology on the equilibrium linking civil rights and national safety in the incessant terror war

Since constitutional rights are intended to defend guiltless people and reassure that only those who committed offense will be confined, then it makes sense limit habeas corpus to those who are debatably innocent. Furthermore, since the constitutional rights are meant to serve for national security then habeas corpus must be presented in spite of guilt or innocence. It will ensure that the detainees will reveal information that will lead to capture of the main perpetrators of attacks on the United States.


It is vital to consider the constitutional right to habeas corpus in relation to the current warfare position. The Supreme Court’s decisions should be recognized principally as an attempt to contain the uniqueness of modern warfare. Habeas corpus will not likely constrict the effectiveness of the war on terror instead it will renovate the process allocated to prisoners of war.


Cosmos of Humanists Pr. Hudson, D. L. (2007). Prisoners’ rights. New York: Chelsea House. Habeas corpus: From England to empire. (2010). Cambridge, Mass: Belknap Press.

Mian, B. K. (1984). American Habeas Corpus: Law, history, and politics. San Francisco

Neubauer, D. W. (2008). America’s courts and the criminal justice system. Belmont, CA

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