Free Right Of Habeas Corpus In The Context Of The War On Terror Essay Sample

Type of paper: Essay

Topic: Habeas Corpus, Politics, Criminal Justice, Crime, Law, Government, Supreme Court, War

Pages: 5

Words: 1375

Published: 2020/12/27


Habeas corpus is essentially a judicial order to a jail official ordering that a convict be brought before the court for it to determine if that individual is imprisoned lawfully or not and whether he/she ought to be released from the custody or not. In particular, habeas corpus ensures that individuals are not unlawfully detained devoid of crime evidence when they are imprisoned. Many individuals do not know why the United States has this interesting judicial mandate and what takes place when it is used. Article 1of the US Constitution states that the writ of habeas corpus should not be used when public safety may need it. Habeas corpus originated from the legal traditions of the English common law. It was made part of the England’s common sense laws to assist the individuals imprisoned unlawfully. It is worth noting that it survived since it represented the struggle of the people against the excess abuse by the government. The British government formalized the writ of habeas corpus in the 1679 Habeas Corpus Act. The writ addressed the power inequality between the government and citizens directly.
The British colonialists within America highly regarded the privilege of habeas corpus use as a protection against unlawful imprisonment. The courts used the writ of habeas corpus as a way to protect individuals from the illegal detention (Farrell, 2011). In fact, the refusals to issue it was among the grievances before the American Revolution. In the year 1861, habeas corpus was suspended by President Lincoln after he believed that the union was under threat. Specifically, the president suspended the writ at the start of the civil war, and the Congress upheld his decision regardless of Roger Taney’s protests that the president did not have the constitutional power to do so. A number of inmates were encouraged by the liberal decisions during 1950s and 1960s by the Supreme Court to file writs challenging their imprisonment. However, the court limited several fillings especially from the inmates on death row.
Throughout the history of the United States, habeas corpus has been suspended several times. For instance, President Lincoln unilaterally suspended habeas corpus on April 27, 1861 in Maryland during the American Civil War. The president allowed the unlawful detention of the prisoners of war, suspected traitors, and military members. In addition, it was suspended by President Jefferson Davis in the Confederacy to maintain order. The other example of the suspension of habeas corpus was during the Second World War when the government incorrectly imprisoned numerous Japanese Americans. The state sent many Japanese to the concentration camps after Pearl Harbor attack. However, the congressional commission forty years down the line determined that the individuals held in the camps had essentially been victims of inequality and discrimination. As a result, the government awarded each camp survivor $20,000.
In the recent years, there have been proposals for the suspension of the writ of habeas corpus in regards to the people accused, suspected, or arrested for playing a part in terrorism acts. In essence, this has turned out to be a controversial topic. Habeas corpus is mainly used in the present day as a post-conviction remedy for the federal or state inmates who challenge the legitimacy of the use of federal laws applied in the judicial proceedings, which resulted in their imprisonment. Habeas corpus is also used in the deportation and immigration cases and matters regarding military detentions. What’s more, it is used to determine a number of preliminary matters in the criminal cases. In particular, the writ of habeas corpus is used to determine the legitimacy of deportation to a foreign nation, the failure to give a speedy hearing or trial, double jeopardy claims, and the denial of parole or bail.
There have been certain actions regarding the war on terror by the Bush administration that both the courts and Congress have discussed (Clark, 2007). As a result, there has been limited suspension of habeas corpus rights to a number of individuals detained in anti-terrorism investigations and military operations. The imprisonment of the illegal combatants gives the government the required flexibility for debilitating potentially dangerous extremists. The government uses harsh methods to discover the plans for the terrorist attacks after imprisoning them. Nevertheless, there are some individuals who oppose the use of harsh methods by the government when interrogating the combatants arguing that the act is immoral, illegal, and ineffective. They claim that when the method is used in innocent individuals, it can increase false confessions as well as false leads that mislead the investigators. There are some dangers that emanate from collecting information from the wrong individuals. Ideally, the failure to identify the correct individuals increases the possibilities of terrorists’ attacks.
The right of habeas corpus is imperative since it demands the government to justify its imprisonment of any individual. It is essential to the current situation in the war on terror as it is about the rights of individuals to be prosecuted for different crimes and tried in a timely manner. The writ is essential because the government takes legal action against the persons who have committed offenses as it requires the government to prove why it has the right to hold such individuals. However, a controversy as to who possesses the right of habeas corpus exists in the contemporary war on terror in the United States. In essence, the controversy is whether the government can hold individuals for long periods as enemy combatants devoid of charging them with a particular crime. According to the government, the writ does not apply to the persons believed to be illegal combatants. Thus, there is a necessity for the United States government to implement a system to both identify and arresting the extremists planning an attack if there has to be a success in the war on terror.
There exists a clash between the rights of civil courts to a due process, and the evidence offered to keep the prisoners held under the wartime measures. An example of the cases that demonstrates this clash is the Boumediene V. Bush case. The suspension of habeas corpus right in Boumediene V. Bush case did not offer the specifications of the trial convicts and the confinement restrictions (Bradley, 2010). In its 2004, 2006, and 2008 rulings, the Supreme Court upheld the right of habeas corpus for the Guantanamo Bay prisoners (Wogan, 2012). The court ruled that the detainees held as illegal combatants could file habeas corpus petition in the country’s district courts challenging the legitimacy of their imprisonment. The Congress passed the Military Commissions Act (MCA) of 2006. The MCA authorized the trial of some prisoners by the military commission and set detailed rules to govern their procedures (Garcia, 2008). It eliminated the jurisdiction of the federal courts to hear habeas corpus applications from the prisoners who have been designated as illegal/enemy combatants.
There are a number of questions that emanated from a 5 to 4 votes in Boumediene V. Bush case. One of these questions was whether the Military Commission Act 2006 could be construed to strip the federal courts of the jurisdiction over the habeas corpus petitions that the foreign citizens imprisoned at Guantanamo Bay filed. The other question was whether the application of Act a violation of the constitution’s suspension clause. Another question was whether these prisoners were entitled to the protection. Finally, there was the question of whether the prisoners could challenge the appropriateness of the judicial review provisions of the Act before seeking to invoke that review.
The war on terror has created a rift within the political and judicial circles (Fallon Jr, 2010). The several viewpoints expressed on the war on terror subject cause effects on the national security and civil liberties. There must be the rules to enforce the precise pre-defined executive action as well as government boundaries during the war on terror. During the war on terror, the Justice is clouded by passion, fear, patriotism, or powerful desires for the administrative strength and efficiency since the judicial innovation and improvisation are not appropriate (Perkins, 2004). As a result, the President as the Commander-in-chief ought to be the ultimate controller. In addition, he should present the national views and citizens, in general. The President can continue or start a war provided that the Congress continues funding it. In essence, the Congress ought to make its decisions about suspending the right of habeas corpus based on its political responsibility, as well as constitutional powers. It is the obligation of the Supreme Court to protect civil liberties by means of striking down the laws, which suspend the right of habeas corpus to the persons considered illegal/enemy combatants. Ideally, the court accomplishes its role as the protector of the civil liberties when it strikes down such laws.
In my opinion, the government should authenticate its incarceration of any person through showing that it is its right to do so. In addition, the executive must take the necessary actions to defend the country during the emergency periods in a cautious manner and restrain such actions when applying them. The writ of habeas corpus ought to be applied in the situations where no overt imprisonment authorities exist. The civil liberties can be lost during the emergency periods such as the war on terror.


Bradley, C. (2010). Clear statement rules and executive war powers. Harvard Journal of Law and Public Policy, 33(1), 1439-148.
Clark, J. W. (2007). “Habeas Corpus: Its Importance, History, and Possible Current Threats.” Retrieved from, on March 21, 2015.
Fallon Jr, R. H. (2010). The Supreme Court, Habeas Corpus, and the War on Terror: An Essay on Law and Political Science. Columbia Law Review, 352-398.
Farrell, B. (2011). Access to Habeas Corpus: A Human Rights Analysis of US Practices in the War on Terrorism. Transnational Law & Contemporary Problems, 20, 3.
Garcia, M. J. (2008, June). Boumediene V. Bush: Guantanamo Detainees' Right to Habeas Corpus. Library of Congress Washington Dc Congressional Research Service.
Perkins, J. (2004). Habeas Corpus in the War against Terrorism: Hamdi v. Rumsfeld and Citizen Enemy Combatants. BYU J. Pub. L., 19, 437.
Wogan, J. B. (2012). “Many Enemy Combatants Still Lack Habeas Rights.” Retrieved from, March 21, 2015.

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