Example Of Terrorism And The Bill Of Rights Essay

Type of paper: Essay

Topic: Law, Supreme Court, Court, Criminal Justice, Government, War, Crime, United States

Pages: 6

Words: 1650

Published: 2020/12/20

Civil Liberties in the era of terrorism

The common law’s archaic “writ of habeas corpus” is regarded as one of the critical bulwarks against totalitarianism. Literally meaning “you have the body,” the writ is issued by the court to force the individuals or the agency detaining the individual to present the person and establish the legitimateness of the person’s incarceration. The mandate is a crucial check against an abusive operation of power by agents of the Executive branch, authorizing the judiciary to contest illegal incarcerations which have been the preferred intimidation mechanism used by oligarchs and tyrants in the past. Owing to the significance of the writ, even a legal violation of the power and the ability to petition must be met with an extremely critical eye and placed under the most restrictive standards for verification (Clark, 2007, p. 2).
In the annals of American history, the writ has only been interrupted only on the most unusual of instances and only transitionary in nature. For example, the right was deferred twice in the course of the American Civil War when Confederate soldiers besieged Washington and militants threatened to cut supply lines and military reinforcements to help the capitol. It was again deferred in the wake of the Civil War when armed rebels rendered it impossible for courts of law to function properly. This was also stopped in the early part of the 1900s in the course an armed revolt in the Philippines.
The last time that the writ was suspended was in 1941 after the Japanese attack on Pearl Harbor. In each of these times, Congress responded to the exigency or situation at hand; Congress made a determination that the suspension of the right will only be consonant with the span of the exigency, and that the suspension of the Congress of the writ will only be done with the highest consideration for the safety of the public in mind. Simply put, the writ of habeas corpus is an integral part of the laws in the United States as well as the very heart of the United States Constitution. Repealing or suspending the right, therefore, must never be done flippantly (Hafetz, 2007, p. 1).
It can be said that the US Constitution was designed to be fully and completely operational in times of war as well as in peace time. There is however one clause that is outstanding in terms of application as a wartime or peacetime right. Article I, section 9, Clause 2, or the “Suspension Clause,” permits the deference of the “writ of habeas corpus” when in “times of invasion or rebellion warrants it to safeguard the public welfare.” In this light, the Suspension provision can be considered as one of the most radical forms or war influence in the Constitution, as due process is one of the bedrocks of the Anglo-American legal jurisprudence system for close to a millennium (Ekeland, 2005, p. 1476).
One of the more obscure rulings concerning the history of the writ in American jurisprudence is Hirota v MacArthur, 338 U.S. 197 (1948). In the perception of the state, Hirota states that the “Federal jurisdiction” listed in Article III cannot be widened to motions filed by persons in custody in foreign shores. The subject of the case, Baron Koki Hirota, was sentenced to death for war crimes in the course of the Second World War. Hirota sought judicial relief in the United States.
Hirota filed directly with the US Supreme Court a habeas petition, entreating the High Court’s “original jurisdiction” covering these types of petitions pursuant to the 1789 Judiciary Act, section 14, where the successor of the law states that habeas decisions can be handed down by the Supreme Court and magistrates of the district or circuit courts within their respective areas of authority.
Though anomalous, Hirota was not uncommon; rather, the case signaled a deluge of similar motions for habeas concerns invoking the “original jurisdiction” doctrine of the US High Court that were filed by Axis convicts found guilty of war crimes by American or Allied military commissions. Withal, the High Bench rejected every single “original” application without the benefit of an opinion or ruling. The Hirota case would be the sole war crime case where arguments were heard and the Supreme Court resolved the case aside from just issuing a “summary disposition”-though there was not much more added to this (Vladeck, 2007, pp. 1499-1500).
In Boumediene v Bush, one parcel of the Constitution made its way to overseas detention facilities, particularly to the American-run detention base in Guantanamo Bay, Cuba. Boumediene held that the constitutional assurances are implemented “extraterritorially” to expatriate inmates held at the facility. The ruling of the Boumediene Court was made deliberately constricted in a number of ways. In the aftermath of Boumediene, speculation has dominated the issue whether this ruling presaged other portions of the Constitution attending the Suspension Clause exclusively to the issue at Guantanamo, with the most possible candidate of the foretelling the issue is the Due Process Clause in the Fifth Amendment.
Though the Supreme Court’s ruling on the issue in Civil War times voided a number of executive branch decisions, the Court did not overturn a Federal law on the premise of the Suspension Clause until the Boumediene decision. Two factors provided the context of the situation that ultimately produced Boumediene. The Supreme Court in Rasul v Bush decided the Federal courts had acquired jurisdiction over the Guantanamo facility. President Bush and Congress countered with the Detainee Treatment Act of 2005, divesting Federal court systems of their jurisdictions over habeas corpus motions from the Guantanamo facility.
One year hence, in Hamdan v Rumsfeld, the Court held that the law cannot be used in the context of habeas motions pending by the time the law was adopted. In another instance, Congress and President Bush amplified their assault on the writ as interpreted by the Supreme Court in enacting the 2006 Military Commissions Act clearly decorticating Federal courts of prerogatives over all petitions that come from Guantanamo, whether these are pending or future motions.
These rulings led to the debates on the writ of habeas corpus in Boumediene. Once again posed with the decisions of the lower courts’ rejecting habeas claims from detainees at the Guantanamo facility, the High Court was confronted with two issues; one, did the Guantanamo claimants have a constitutional guarantee to the writ, and if these did so, does the Detainee Act offer a sufficient alternative and potent option in the operation of “combatant status review tribunals (CSRTs)? Justice Anthony Kennedy, writing for the majority in the case, ruled that the claimants did possess a right to avail to habeas corpus and with regards to the second question, that the law offered a deficient alternative.
The Court declared that as the right to habeas review applied in full to the Guantanamo facility, Congress should acquiesce to the Suspension Clause to be able to suspend that right; however, the High Court noted that Congress had adopted deference of the writ or offered a suitable alternative. The High Court subsequently ordered lower courts to accommodate habeas motions from Guantanamo detainees, though Kennedy’s ruling did not establish clear and defined borders for the proper review of the motions (Geltzer, 2012, p. 725).
Congress has not willfully deferred the writ in the ongoing “War on Terror,” and detainees have filed motions for habeas corpus in the Federal criminal justice system. Majority of the petitions argue that the President infringed the Suspension Clause by rejecting the detainees’ petitions on the legitimacy of their detentions (Ekeland, 2005, p. 1477).
With regards to the Suspension Clause, Justice Thomas and Scalia hold digressing views on the general reading of the latter; the Clause permits the deference of the writ in “cases of rebellion or invasion [that] the safety of the public may require it.” Justice Thomas is apprehensive the situation might not acquire, whether in this particular instance or in future exigencies where the mandate to detain will be needed.
If these scenarios must be implemented, and the legislature must officially interrupt the availability of the writ for in extended, indefinite period of time sans any the filing of a formal charge and be legal, then the situation would be restricted to allowing the government to commit unconstitutional actions against the people, or to deprive the President the necessary tools to defend the nation. Moreover, even if the legislature moved to defer the implementation of the writ, Justice Thomas rejects the notion that this action will make unconstitutional quarantine actions compliant with the constitutional mandate (Gregory, 2013, p. 347).
Disturbingly, the interpretation of the President in particular and the Executive in general, of the law expands even what Congress intended the laws to mean. The Detainee Treatment and Military Commissions acts were geared to bar habeas motions from those held in Guantanamo Bay and in other similar detention facilities in the world. The Bush government extended that concept to apply to illegal émigrés.
If this principle were to be implemented, this will translate to giving state and Federal law enforcement agents the ability to accost and incarcerate any person from the streets randomly, investigate the person, and if the agents believe, label the person as an “enemy combatants” for years on end, and what is frightening in this instance is that the suspect does not possess any right to challenge his detention before a Federal magistrate. Government agents have since then aggressively sought to impose this principle in the ongoing global war on extremism (Hafetz, 2007, p. 3).
Judicial review of incarcerations prompted by the Executive branch in the ongoing American led global war on extremism has come under fire from the government. The criticism centers on the aspect of “judicial oversight” regarding the actions of the Executive arm of the government in the course of the “war on terror” does not help the war effort; instead, the stringent oversight functions of the “war on terror” hinders the effective execution of the objectives and ultimately poses a severe threat to national security. If this position then is valid, then the action to defer the writ is a logical one and the detentions conducted under this policy are all legal. One of the more feasible and transparent ways to do this is to have Congress officially suspend the writ (Ekeland, 2005, pp. 1518).
The existing legal structure permits American troops to achieve their objectives without negatively impacting the efficiency of the military or infringing on the tenets of international laws. It is argued that this status quo should not be tampered with and in the process weaken the ability of the US armed forces to incarcerate foreign enemies and prosecute these parties for war offenses (Carafano, 2007, p. 1).
Here, proposing that Justice Scalia’s position is viable, and that suspending the writ automatically denies judicial scrutiny of executive incarcerations, does the menace of the brutal Islamic fundamentalist group Al-Qaeda warrant such actions? Though the group has already launched several attacks on American interests, a number of commentators are doubtful of the group’s actual threat capabilities or as a serious threat to the continued existence of the United States, and what is more integral to the issue, the emergency mandates given to the President to address the problem of extremism pose the greater danger than those given by extremists to the United States. However, the threat posed by extremists remains a potent one; it is recommended that Congress should acquiesce to a limited suspension policy of the writ and limited in application (Ekeland, 2005, pp. 1518).


Carafano, J.J. (2007). “The War on Terrorism: habeas corpus on and off the battlefield.” Retrieved 16 March 2015 from <http://www.heritage.org/research/reports/2007/07/the-war-on-terrorism-habeas-corpus-on-and-off-the-battlefield
Clark, J (2007). “Habeas corpus: its importance, history, and possible current threats.” Retrieved 16 March 2015 from <http://trace.tennessee.edu/cgi/viewcontent.cgi?article=2057&context=utk_chanhonoproj
Ekeland, T. (2005). Suspending habeas corpus: Article I, section 9, clause 2, or the United States Constitution and the War on Terror. Fordham Law Review Volume 74 number 3 article 11 pp. 1475-1519
Geltzer, J. (2012). Of suspension, due process, and Guantanamo: the reach of the Fifth Amendment after Boumediene and the relationship between habeas corpus and due process. Journal of Constitutional Law Volume 14 number 3 pp. 719-780
Gregory, A. (2013). “The power of habeas corpus in America: from the King’s prerogative to the War on Terror” Cambridge: Cambridge University Press
Hafetz, J. (2007). “Ten things you should know about habeas corpus.” Retrieved 16 March 2015 from <http://www.brennancenter.org/sites/default/files/legacy/d/download_file_48810.pdf
Vladec, S.I., Deconstructing Hirota: habeas corpus, citizenship, and Article III. Georgetown Law Journal volume 95 pp. 1497- 1554

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