Good Essay On On The Scales: Liberty And Security

Type of paper: Essay

Topic: Politics, Law, Terrorism, War, Criminal Justice, Habeas Corpus, United States, Government

Pages: 6

Words: 1650

Published: 2020/11/29

Security and Liberty: Terror and rights

As in the time of President Abraham Lincoln, the United States again finds itself enmeshed in war, and in war, the laws that apply are different. Lincoln halted the right of habeas corpus, with the suspension; the power of the judiciary to review the merits of the detention of the person is also stopped, triggering the fiercest debates on the Constitution during his administration (Williams, 2015, p. 1). During the administration of President George W. Bush, the US-led “War on Terror” was launched; in one swift deliberate move, President Bush destroyed the US Constitution, the Bill of Rights, the Geneva Conventions, the United Nations Conventions against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The right of the prisoners of war to the writ of habeas corpus was reinforced by watershed rulings given by the US Supreme Court. However, the US Congress undermined the rulings that would repeal the grant of the right to the prisoners earlier reaffirmed by the High Court (Warren, n.d., p. 1).
One oft repeated theorem was one declared by Roman constitutionalist and philosopher Cicero. In describing the balance of rights and war, the noted Roman orator states “silent leges inter arma,” commonly interpreted as “the power of law is suspended during war.” In restating Cicero’s postulate, US Supreme Court Chief Justice William Rehnquist stated that the law is not completely muzzled during wartime. Though it is not totally silent, the law, according to Chief Justice Rehnquist, “speaks with a different voice.” Rehnquist could supplement this assertion that in wartime, the “voice of the law” is almost inaudible (Lobel, 2001, p. 25).
The High Court has termed habeas corpus as the “fundamental instrument for safeguarding individual freedom against arbitrary and lawless action.” A historical analysis of the writ will show the understanding the comprehension of the Framers of the “Great Writ,” its intended function as well as its models in American habeas legal thought. In the understanding of the Framers, chancellors were less interested whether an appellant was actually in the country or overseas compared to the instance that the person was in the custody of an agent of the King. The cynosure of the tenets of the law was on the “jailer” rather than on the “prisoner;” even expatriate enemies, in that period the enemies of the King, if these enemies were living, or came unto, the ‘dominion of the sovereign,’ then these were permitted to have access to habeas evaluation of their cases.
The historical assessment determines that the jurisprudence related to the practice of habeas corpus in England, its colonies, and in the United States, is opposed to the position that entry to the criminal justice system to examine the validity of the detention of the individual can be arbitrarily determined by the detaining power. Simply put, the factor of whether the prisoner can have access to habeas review does not lie with the “jailer.” Though there is a long held belief that the powers of the Executive expands in times of war, a munificence looked upon by courts with a degree of deference, the US Supreme Court has not yet addressed which component of the government has the final right to defer the operation of the writ.
Here, the power skirmishes with the President on one side of the political aisle and Congress over the power to develop and adopt policies in times of war persists, as it has done over the course of American history. In the early years of the détente era, the President loomed over US foreign policy mainly due to propositions that Congress’ knowledge in the field was too mediocre (Palomares, 2002, p. 102).
The “War on Terror” has triggered a fierce debate on the need to balance the protection of personal liberties against the needs of national security. The conflict is being waged by civil rights supporters determined to defend human liberties on one hand and national security policy makers equally determined in their cause to defend the country from the next extremist assault. The United States government war against extremism has seen government agents grab people off the streets, detain them for indefinite periods of time without official charges being lodged against them, and subject these individuals to interrogation methods described by a number of American allies as persecution (Shaw, 2009, p. 1).
Detractors of the global war accuse the government of espousing a philosophy of dread and suppression that result in the creation of antagonists and advocates hostility and conflict. The global initiative has become a favorite excuse for governments to oppress antigovernment movements in their own countries and transgress internationally binding agreements on civil and human rights (Global Policy Forum, 2015, p. 1). After President Obama was inaugurated, the President proceeded to issue orders to shut the highly controversial Guantanamo Bay detention facility. Two years hence, the plan is in disarray, with more than 170 detainees still in the facility, and new laws have made transferring the prisoners’ extremely difficult (Hafetz, 2011, p. 3).
It must be noted however that civil rights debates and the conflict with national security are not new; there are several instances from the American Civil War and the Second World War. As it was in the past and through to the present day, habeas corpus, the most basic right in Anglo-American jurisprudence, has been thrust center stage as a guide in the discussion on where to establish the lines between protecting civil liberty and the mandate of national security (Shaw, 2009, p. 1).
Though terrorism has been committed in various contexts, modern day extremism presents a new and dangerous concern-how to construct a government framework that defends the country and at the same time defends the citizenry against itself. This is an innovative problem; governments have long planned on how to protect their citizens against foreign aggression. However, protecting the rights of the citizens from the actions of the government bent on ferreting out the enemies “within” is another matter.
The pivotal matter here is the exaggeration of the balances between the impact of terrorism and the draconian measures that have been undertaken in an apparent bid to mitigate or eliminate the threat of extremism. For example, gauging the damage that can be done by sport utility vehicles in the United States far outstrips the danger posed by terrorist actions in the country.
In arguing on restricting harmful events, it is prudent to note Humboldt’s interpretation of the matter. In examining the “trade-offs” between national defenses and safeguarding individual freedoms, Humboldt posits whether the government should expand its actions to positively impact the nation’s welfare or limit itself to providing security. Humboldt resolves that even beneficial action undercut the strength of a nation, ultimately restricting the individuality of the person which supports the civil and human rights in a democratic society (Hardin, 2003, p. 81-83).
The term “habeas corpus” can be basically defined as “that you have the body.” The American jurisprudence system embraced the principle from the English common law system, though with minor alterations. In the English system, the King utilized the right to force people to appear in the court system. Parliament recognized this power of the King as a way to limit the individual freedoms enjoyed by the people. In this light, Parliament adopted the “Petition of Right,” eradicating the power of the monarch to send people to prison sans any cause. Thus, the act of Parliament was instrumental in changing the concept of the right to become an effective means to protect individual liberties (Palomares, 2002, p. 104).
The issue of which branch has the legal basis to suspend the “privilege of the writ of habeas corpus” is a simple question regarding the separation of powers and its effect on civil rights. The writ, called as the “Great Writ of Liberty,” has been regarded as a potent weapon against possible government tyranny. The Constitution notes that, in the laws “Suspension Clause,” the writ will not be interrupted “unless in cases of Rebellion or Invasion or the public safety may require it.” Though the language of the provision seems to display instances when the government can suspend the writ, it does not show which branch can execute that suspension (Jackson, 2004, p. 12).
During periods of extreme national exigencies, civil rights are at times suspended in a “trade” for improving national security. The Framers of the Constitution, foreseeing a possible scenario, gave Congress the capability to defer the “right to a writ of habeas corpus in times of rebellion or invasion.” In Hamdi v Rumsfeld, Congress did not defer the right, though it has given the President the powers to utilize military resources against extremists and their cohorts. Nevertheless, the administration moved to effectively restrict Hamdi’s access to the writ by framing him as an “enemy combatant.” With this classification, Hamdi was subjected to “executive discretion” rather than the prevailing law in the United States with the attendant constitutional safeguards.
Hamdi’s request and the positions of the government justifying the detention resulted in the rise of questions on the concerns of the separation of powers and the safeguarding of civil rights during times of national exigencies. In these instances, the public bespeaks of their want for inordinate security measures; officials taxed with keeping the safety of the public will be pressured to ensure optimal security at all times or will be tempted to abuse the fear of the public to pursue their own ideological and political objectives. The judicial branch must stand as the anchor of the society opposing the people’s agents when the inordinate fear of the public and indignation permit or force the adoption of measures that weaken or undercut fundamental constitutional concepts (Perkins, n.d., p. 438).
Though Hamdi is viewed as restricted to the perception of prisoners categorized as “enemy combatants,” the decision places all Americans under threat. The “War against Terrorism” cannot be understood as a conventional conflict and the extremist adversary is not readily visible. Actions ranging from political militancy to Internet utilization can suggest possible “red flags” for security policy makers that can place any person that seems to fit the construct of an extremist “on the radar” of the national security establishment. \
Furthermore, with the religious and racial components that is integrated into Middle Eastern fundamentalism, a number of fringe populations will be targeted for security policies of the government, whether the inordinate focus is legal or not. The ramification here is that the global conflict against extremism will be fought overseas as well as within the borders of the country. Everyone can be treated as a suspect that can be comprehended as an “enemy combatant” and subjected to the treatment of the parties in Hamdi (Perkins, n.d., p. 439).
The most recent High Court ruling, Boumediene v. Bush, rebuffed one of the vitalizing concepts of the international detention mechanism: that a detainee can be refused the right to avail of habeas review if the detention facility is outside of US territory. In the tenets of the “Suspension Clause,” the right to habeas review is not restricted to US citizens or to the United States mainland. In the decision of the Supreme Court, the right to avail of the writ of habeas corpus applies to all American detention facilities across the globe, from the notorious Guantanamo Bay facility in Cuba to the Bagram facility in Afghanistan as well as the CIA “black sites.” The “Bagram ruling” was also applied in another case, the initial case to be ruled using the decision as an anchor. In al-Maqaleh v. Gates, the district court reaffirmed the Supreme Court position that Boumediene was not limited to Guantanamo (Hafetz, 2011, p. 164).
In the work of Cole and Dworkin (2009), the balance of war and rights analogy is open to a number of criticisms. By applying the most oppressive policies for outsiders that are accused of some degree of relationship with extremist elements, the criminal justice system is not fair in its evaluation of the cases before it. People are not balancing their own rights with the needs of national security; instead, Americans are balancing others’ rights to buttress their own safety. Majority of Americans would never agree to a law that would allow police to imprison them for indeterminate periods owing to a mere allegation of being connected to extremism, nor would anyone be convinced to participate in clandestine trials. Alternately, what is at trial here when the basic premise of parity in the Constitution that is ensured in its tenets is being deprived to a particular sector in American society (Lobel, 2001, p. 28).


Global Policy Forum (2015). “War on Terrorism.” Retrieved 27 February 2015 from <
Hafetz, J. (2011). Habeas corpus after 9/11: confronting America’s new global detention system. New York: NYU Press
Hafetz, J, (2011). “Habeas corpus and the “war on terror.” Retrieved 27 February 2015 from <
Hardin, R (2003). “Civil liberties in the era of mass terrorism.” Retrieved 27 February 2015 from <
Jackson, J. (2004). The power to suspend habeas corpus: an answer from the arguments surrounding ex parte Merryman. Baltimore Law Review Volume 34 pp. 11-54
Lobel, J (2001). “The war on terrorism and civil liberties.” Retrieved 27 February 2015 from <
Palomares, E (2002). Illegal confinement: Presidential authority to suspend the privilege of the writ of habeas corpus during times of emergency. Southern California Interdisciplinary Law Journal Volume 12 pp. 101-137
Perkins, J (n.d.). Habeas corpus in the ‘War against Terrorism:’ Hamdi v Rumsfeld and citizen enemy combatants. BYU Journal of Public Law Volume 19 pp. 437-471
Shaw, J. (2009). The war and the writ. Harvard Magazine
Warren, V. (n.d.). “The 9/11 decade and the decline of US democracy.” Retrieved 27 February 2015 from <
Williams, F. (2004) “Abraham Lincoln and civil liberties in wartime.” Retrieved 27 February 2015 from <

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