Habeas Corpus and its Application within the U.S.
The original purpose of the writ of habeas corpus was to ensure that an individual could be tried by a judge in court for purported crimes that are attributed to them. Its institution was meant as a means by which a person is given a fair trial and is not unlawfully detained without sufficient cause or evidence to justify their incarceration. In the case of the U.S., the application of the writ of habeas corpus can actually be suspended depending on the following factors as outlined by Article 1, section 9 of the U.S. Constitution:
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- general public safety as required given unprecedented external/internal circumstances
When taking this into consideration, it can be seen that in certain circumstances habeas corpus can be suspended when it involves aspects that endanger public safety. As seen in the events of 9/11, the concept of terrorism has in effect altered America’s perception regarding what can constitute a real and possible danger to its citizenry and as such measures such as the creation of Gunatanamo Bay and the Military Commissions of Act of 2006 thus becomes more justifiable due to the way in which the standard concept of a threat to the state which normally comes in the form of an opposing country has now been changed to focus on combatants who can pose as civilians.
It is based on this that this paper is under the assumption that governments have the responsibility to ensure the survival of the state and as such this can at times justify the act of denying people certain freedoms if it means the survival of the state as a whole.
Suspension and Implementation of Habeas Corpus as it Applies to the Current Situation
An examination of various historical instances surrounding the use and suspension of habeas corpus reveals several notable instances that show a great deal of relevance to the present day case. The first involves the case of Johnson versus Eisentrager (involving German war criminals that were held within a U.S. administered prison that was within Germany) wherein it was ruled by the U.S. supreme court that in instances where the U.S. government does not hold sovereignty the U.S. Constitution thus does not completely ensure the application of habeas corpus (Katyal, 2008).
When taking this particular case into consideration, the case of Guantanamo bay is more along the lines of a prison that is merely administered by the U.S. government, yet the detainees within are under the jurisdiction of Cuba. Thus, from a certain perspective, if you take the case of Johnson versus Eisentrager into consideration, then the suspension of habeas corpus is perfectly valid since the prisoners are not subject to the U.S. government law.
Other instances where habeas corpus has been suspended were seen in the aftermath of the attack on Pearl Harbor wherein 10 saboteurs, 8 of whom were German were tried via a secret military court with the writ of habeas corpus not being applicable due to the saboteurs being labeled as unlawful combatants.
From a certain perspective, it can be stated that since the individuals within Guantanamo bay are being accused of terrorism which in itself is considered an unlawful action, then their detention and conviction under the Military Commissions of Act of 2006, thus becomes valid since the mere act of terrorism does not necessarily target military installations and personnel but can encompass civilian targets as well as evidenced by the attack on the World Trade Center on September 11.
Evaluation of the Perspective of the Judges
When examining the case of Boumediene versus Bush, it is quite interesting to note that the divergent views of the judges involving the suspension of habeas corpus in the case of detainees at Guantanamo bay is a clear example of the clash over traditional views involving national security and the clearly nontraditional nature of the present day security environment (Raughter, 2005).
It can be seen that the negative views of judges Souter and Kennedy regarding the inherent problems surrounding the suspension of habeas corpus in the case of the MCA and AEDPA were based on not only historical precedent (as seen in their arguments involving the application of habeas corpus on territories outside of the U.S. as well as its implementation with the case of England and Scotland) but on moral grounds citing the checks and balances system within the U.S. government that prevents too much power from being concentrated on one branch of the government as well as the fact that the detainees within Guantanamo themselves were held for a period of up to six years without sufficient evidence to show that they were complicit in terrorist actions (Posner, 2007).
On the other end of spectrum is the dissent of judges Scalia, Roberts, Alito and Thomas. In this particular case, it can be seen that their arguments are based on what was mentioned earlier involving nontraditional security issues within the present day global security environment. What you have to understand is that from the perspective of the dissenting judges the writ of habeas corpus as it applies to the case of the detainment of foreign nationals was originally meant as a measure that applied to combatants that were part of an enemy state (Neuman, 2010).
The problem with terrorism, as explained by Scalia, is that it is incredibly difficult to actually determine who is and who is not a combatant within a foreign theater of war (Dempsey & Sahar, 2011. It is usually the case that in periods of conflict it is the enemy state that is held liable for the actions of its soldiers, however in this particular case there is no state to which the action of terrorism can be attributed to since this is based on an ideology created by a nongovernmental organization.
Thus, even though the individuals detained within Guantanamo bay are considered enemy combatants, their possible actions in the future which may or may not result in the loss of American lives cannot be attributed to a particular state and thus no form of commensurate action in the form of reparation or retribution can be applied.
When examining the current war on terror within the context of the protection of civil liberties, the issue of the survival of the state must be taken into consideration. As it was explained earlier, one of the primary roles of the government is ensuring the survival of state. This is done through a variety of means and methods whether military or political in nature.
From my personal perspective, based on the various research texts I have examined on the issue, the necessity of ensuring the survival of the state often supersedes the concept civil liberties. This was seen in a variety of instances within the international stage involving the suppression of activists within Russia and China and the implementation of martial law in the Philippines.
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The U.S. itself is no stranger to the concept of suppression with the famous Communist “witch hunts” that occurred within the country during the height of the Cold War and the suppression of various civil liberties during this particular period in time in favor of protecting the interests of the state clearly showing that civil liberties are not indelible but rather are transient depending on the situation at hand.
One of the views justifying the suppression of civil liberties can be seen in the work of Boot (2008) which states that extraordinary external events which present a clear and present threat to the safety and security of the state often requires equally extraordinary measures to counteract them (Boot, 2008). In the case of terrorism which falls under the category of a “nontraditional” security issue, this often entails the implementation of measures of counteraction which do not fall under the traditional domain.
While “traditional” security issues (i.e. conflict between states) entail the implementation of specific rules of conflict including habeas corpus, nontraditional methods of security often deal with situations wherein threats are not so clearly defined (i.e. terrorists posing as civilians) thus necessitating the use of other means of prevention. You also have to take into consideration the fact that when the laws meant to protect the rights of detainees were established they were done under a security environment that primarily dealt with traditional threats.
In this age where nontraditional threats have significantly increased, this necessitates an entirely different means of counteracting them. In this particular age, the process of preventing terrorist activities from taking place has now all boiled down to the acquisition of relevant knowledge and the implementation of measures meant to prevent terrorist events from even occurring.
The logic behind this led to the creation of the Guantanamo bay facilities as well as the drone strikes within the region of Pakistan which many have cited as being responsible for terrorist and civilian deaths like. Despite this, it must be questioned what would have been the result if preventive measures such as this had not been implemented in the first place.
Some studies such as those by Semple (2011) have indicated that the U.S. drone strikes and the Guantanamo bay facility have actually encouraged anti-U.S. sentiment and the popularization of terrorist action against the U.S. as seen in the recent case of the death of the U.S. ambassador to Libya as well as numerous attacks on various U.S. embassies within the Middle East (Semple, 2011).
On the other hand, there are studies such as those by Greenwald (2011) that indicate that the suspension of habeas corpus, the establishment of Guantanamo bay as well as the drone strikes in the Middle East are a justified way of preventing threats from escalating into actions that may adversely affect more American lives in the future (Scalia, 2008) (Greenwald, 2011).
It is based on this that while I consider the detainment of prisoners at Guantanamo Bay (GITMO) without proper judicial proceedings to be ethically and morally wrong, the fact remains that their detainment can be considered a necessity in order to ensure the protection of the state as a whole.
Boot, M. (2008). Are We Winning the War on Terror? Commentary, 126(1), 15-20.
Dempsey, A., & Sahar, L. (2011). Spoiling Boumediene: Military Involvement in the Destruction of Evidence Regarding Detainee Habeas Petitions. Georgetown Journal Of Legal Ethics, 24(3), 497-516.
Greenwald, A. (2011). A decade after 9/11 what we got right in the war on terror. Commentary, 132(2), 14-27.
Katyal, N. (2008). courting failure. American Lawyer, 24.
Neuman, G. L. (2010). The habeas corpus suspension clause AFTER BOUMEDIENE V. BUSH. Columbia Law Review, 110(2), 537-578.
Posner, M. (2007). Panel Votes To Restore Habeas Corpus To War Detainees. CongressDaily. p. 12.
Raughter, J. (2005). Courts differ on Gitmo detainees. American Legion, 159(1), 12.
Scalia, J. (2008). Decision Will Cause More Americans to Be Killed. (Cover story). Human Events, 64(22), 1-8.
Semple, M. (2011). Fault lines in the sand. New Statesman, 140(5060), 24-26.