Good Essay On Civil Liberties, Habeas Corpus, And The War On Terror

Type of paper: Essay

Topic: Supreme Court, Habeas Corpus, Criminal Justice, Law, Politics, Court, Crime, United States

Pages: 6

Words: 1650

Published: 2021/01/29

Political Science

Introduction & Thesis Statement
Ever since civility reigned supreme in the modern times, one of the greatest protections offered to mankind, in addition to democracy, is the powerful writ of Habeas Corpus. Unfortunately, after the U.S. invasion of Afghanistan in 2001, the Bush administration developed a plan for holding and interrogating captured prisoners at Guantanamo Bay; a land leased from the government of Cuba. A lot of POWs (Prisoners of War) were detained here, but as the government couldn’t file charges against them, many of them were released without charges or turned over to other governments. The problem with the detainees was that they didn’t have access to a fair trial as Guantanamo Bay was beyond the U.S legal jurisdiction. The Bush administration chose this location to avoid any judicial oversight of how it handled detainees, characterized as enemy combatants (Sutton, 2012). Why did the Bush administration release a number of detainees without charges and confine a number of detainees in Guantanamo Bay? Why aren’t these detainees given access to a fair trial in the U.S, if they didn’t come under the Cases of Rebellion or Invasion the public Safety? Article I, Section 9 of the Constitution states that the writ of habeas corpus only can only be suspended in cases of rebellion or invasion. If so, do these detainees qualify to be labelled under any one of these cases? If Guantanamo Bay doesn’t come under the gambit of the U.S judicial oversight of how it handled detainees, there is every possibility of legally challenging the indefinite detention with no formal charges through the habeas corpus provision of the Constitution (Sutton, 2012). In its ‘war on terror,’ certain actions by the Bush administration are questionable, and there have been debates in both the Congress and the courts on the morality of keeping detainees in custody without a fair trial for so long. The grounds under which the limited suspension of the habeas corpus rights of some people detained in military operations and anti-terrorism investigations is thus, questionable and unjust.
Article I, Section 9 of the Constitution states, “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Therefore, under the U.S constitution, there is no reason to deny a detainee in prison a free and fair trial if he or she is not rebellious or invasive of public safety. Guantanamo Bay may not be under the U.S jurisdiction. But, if this was the case, on what grounds were some prisoners freed without trial or sent to other countries, while the others languished in those jails? (Sutton, 2012) Under Article I, section 9, any person detained by the government is entitled to a judicial hearing to determine if there is any legal basis for their detention. Ever since the U.S invasion of Afghanistan in 2001, it has been fourteen long years since a number of prisoners have been lodged in Guantanamo Bay prison without a proper trial (Sutton, 2012). How can the U.S government, representative of the greatest democracy in the world, deny these prisoners their basic rights? If Guantanamo Bay doesn’t come under the jurisdiction of the U.S. constitution; which is isn’t, they should be allowed the right of habeas corpus. Habeas Corpus is considered the ‘great writ of liberty,’ because it allows prisoners the ultimate recourse to an impartial judge who can review and decide whether he or she is being held in prison illegally (Sutton, 2012). Isn’t this a personal right of any individual? If the U.S does not honor habeas corpus, can it be called the greatest democracy in the world?

Habeas Corpus: The History

Habeas Corpus was originally used to “bring people into court rather than out of imprisonment, and by 1230, the writ’s utility for that purpose was a well-known aspect of English common law” (Jackson, 2010, p.264). The origin of Habeas Corpus in England has an interesting history. During the days when kings ruled England, it was accepted that the law of the land was the king’s voice, and there was no way a person or persons could get justice without the king’s consent. If the king pronounced a verdict in a case, it was final and there was no way it could be challenged. Therefore, when ‘the Great Writ,’ codified into English law was passed in Parliament as the Habeas Corpus Act of 1641, it was used in response to the King of England’s actions during Darnell's Case. In that case, five English noblemen were thrown ‘into the castle’s dungeon’ for their opposition to England’s wars against France and Spain. While they did no harm to England’s cause, the king felt that they had surrendered their loyalty for which they deserved to be jailed. The jailed men filed suit, requesting the King to explain the reason for their imprisonment. When the king refused to answer, the court deemed it unnecessary for the king to provide any justification for their imprisonment (Jackson, 2010, p.265). The court’s decision created a furore, and the public demanded an explanation, prompting Parliament to take action. Habeas Corpus is a powerful democratic tool, and by issuing a writ of habeas corpus, a judge or court may prompt those holding a prisoner to produce him or her and prove that they are held legally.
The American doctrine of habeas corpus is a continuation of the law brought here from England, says Clark (2007). In commenting on the Laws of England, Sir William Blackstone (Commentaries on the Laws of England, The University of Chicago Press, 1979, p.435) gives credit to the writ of habeas corpus to the ancient Saxons who conquered England. Blackstone staunchly supported the importance of the writ of habeas corpus lay in its protection of the liberty of individuals (Clark, 2007). In 2011, ten years after the detainees were imprisoned in Guantanamo Bay, Congress, under President Bush, stopped the funds meant to transfer the Guantanamo Bay prisoners to detention facilities to the United States. This move was intentional, and it made it virtually impossible to try them in civilian courts. As of April 2012, one hundred and sixty-nine prisoners remain in prison at Gitmo (Sutton, 2012). Prior to Boumediene v. Bush, the Supreme Court had never allowed the constitutional right of habeas corpus to an outsider detained abroad while the United States was at war (Hill, 2009, p.447). In the Boumediene v. Bush case, the Supreme Court held that the suspension clause of the Constitution (Suspension Clause) would apply completely at Guantanamo Bay, Cuba, and any foreign non-American enemy combatant detained at the military prison there could challenge their detention using the writ of habeas corpus. When the Supreme Court found that Congress neither suspended the writ of habeas corpus nor provided an alternative for it to the petitioners to challenge their detention, it announced that the United States District Courts could have jurisdiction to hear writ of habeas corpus claims from these non-American enemy combatants held at Guantanamo Bay (Hill, 2009, p.448). The Bush administration had time and again tried to evade legal hassles, and as the writ sometimes caused a lot of discomfort to the President’s attempts to enforce the law during war, the government tried to suspend the writ for insufficient reasons.
There is every reason to believe why the Bush administration selected Guantanamo Bay as the location to detain enemy combatants. As it was beyond the jurisdiction of U.S. courts, the Bush administration would have thought that there was no way the enemy combatants could avail legal assistance. The administration also wanted to avoid any judicial oversight of how it handled detainees, and so found Guantanamo Bay the most convenient site to imprison the enemy combatants. They were aware that there was also a possibility that there could be a legal challenge to their indefinite detention without formal charges or judicial proceedings, and the habeas corpus provision of the Constitution could be used. But no one thought that the Supreme Court would rule in favour of Boumediene in Boumediene v. Bush. Several controversial Supreme Court cases have come out of Gitmo. Is the President’s indefinite detention of enemy combatants without the possibility of the minimal judicial review protected by habeas corpus justifiable? Where have the civil liberties that our politicians profess gone? True, there is every possibility that some of those captured from the war zones in Afghanistan are loyalists of Osama Bin Laden and were fighting the Americans in ground battles there. But that does not give the President the executive power to overrule or amend doctrines to suit his interests. The judiciary is nonbiased and in a democratic country like the United States, it would be nothing less than dictatorial for the President to prevent enemy combatants from seeking justice. The action of the President is questionable, because when the executive clashes with Congress and the Supreme Court in its view of its executive power, questions such as, can a terrorist action be classified as a criminal violation or a political act, or should terrorists be prosecuted under the laws of armed conflict or the criminal justice system arise. Which international conventions govern the confinement and interrogation of terrorists, and does it make a difference if the victims of terrorism are combatants or non-combatants?
While there is a strong desire to create a strong nationalistic image of the U.S as the strongest democracy in the world, there are supporters for the executive as well. James Terry, in his essay Habeas Corpus and the Detention of Enemy Combatants in the War on Terror, explored the life of detainee confined in prisons over the last five years and recommended what role habeas corpus should play during a war. Terry defines the role courts should play in shaping detainee issues through its interpretation of the writ of habeas corpus. However, he believes that in the war on terror, there must be some limitations on judicial adventurism, as the extension of habeas corpus to alien enemy combatants will encourage forum shopping (Rishikof, 2008, p.12). Therefore, domestic civil courts must be refrained from involving in military affairs. Taking the example of Johnson v. Eisentrager, Terry reveals the limit habeas had on aliens held in foreign territories. According to him, there were four instances when writ had been suspended under Article I of the U.S. Constitution due to the aliens’ rebellious or invasive intent in the U.S’s history, “the Civil War post-facto under President Abraham Lincoln; the Ku Klux Klan Act under President Ulysses Grant; the Philippines insurrection under President William McKinley; and post-Pearl Harbor in the Hawaiian Islands under President Franklin Roosevelt (Rishikof, 2008, p.12). However, the prisoners held at Guantanamo Bay are not rebels or invaders; they are prisoners of war. In a number of cases of habeas corpus proceedings heard in D.C. District Courts, there has been a barrage of legal questions asked, such as, “what is the scope of the government’s authority to detain these, and other, detainees pursuant to the Authorization for Use of Military Force . . . , as informed by the law of war?” (Olson, 2009, p.198) In Ahmed v. Obama, Judge Gladys Kessler granted the petitioner’s writ because there was not enough proof to convince her that Ahmed ‘fought for the Taliban.’ She was also not convinced that Ahmed had received military training and traveled around Afghanistan “with terrorists fleeing from the scene of war.” Judge Gladys Kessler also mentioned that Ahmed did not reveal any terrorist-like behavior while staying at a guesthouse to show that he was an al-Qaida sympathizer. In her observation, Judge Kessler said she did not consider “travelling around Afghanistan in 2001 and 2002 in the company of terrorist fighters fleeing the battlefield” to constitute substantial support, and so, if the government wanted to detain Ahmed, the Government should prove that Ahmed had joined al-Qaeda and/or the Taliban in battle against the United States and/or coalition forces, to justify Ahmed’s detention (Olson, 2009, p.241).


Considering the number of cases covered in this essay, and how civil liberties were discarded by the executive powers of the president when detaining prisoners at Guantanamo Bay, the arguments and views taken by the government to detain prisoners without allowing writ of habeas corpus does speak of injustice. When the Supreme Court ruled in favour of Boumediene in Boumediene v. Bush, the Bush administration was convinced that it could get away from judicial interference if it kept the prisoners at Guantanamo Bay from habeas corpus. However, considering the Supreme Court’s verdict, and Judge Gladys Kessler’s inference in Ahmed v. Obama, why hasn’t the government allowed habeas corpus to those detainees at Guantanamo Bay, if they can prove that they (the prisoners) were involved in battle against the United States and/or coalition forces, and detain them? The grounds under which the limited suspension of the habeas corpus rights of some people detained in military operations and anti-terrorism investigations is thus, questionable and unjust.


Clark, J. (2007). Habeas Corpus: Its Importance, History, and Possible Current Threats. Retrieved 6 April 2015, from
Hill, M. (2009). Boumediene V. Bush: The Supreme Court’s War on Precedent Damages the
War on Terror. Creighton Law Review, 42(3), 447-486.
Jackson, A. (2010). Habeas Corpus in the Global War on Terror: An American Drama.
Olson, L. (2009). Guantánamo Habeas Review: Are the D.C. District Court’s Decisions
Consistent with IHL Internment Standards?. SSRN Journal. doi:10.2139/ssrn.1515928
Rishikof, H. (2008). Juridical Warfare: The Neglected Legal Instrument. JFQ: Joint Force
Quarterly, (48), 11-13.
Sutton, J. (2012, April 19). Two Guantanamo Uighur prisoners head to El Salvador. Chicago
Tribune News. Retrieved 6 April 2015, from,0,1170410.story
Terry, J. (2015). Habeas Corpus and the Detention of Enemy Combatants in the War on
Terror. JFQ: Joint Force Quarterly., (48), 14-18.

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