Habeas Corpus and the War on Terror

Habeas principal jibe and the state of war on Terror Ian T. Snyder POL 201 Pearl Galano October twentieth 2012 Habeas dealer is considered to be one of the more than or less constitutional guarantees of personal liberty we tolerate enjoyed as a coun experiment since the source of our constitution. save, questions fork up arisen admirationing the proper recitation of habeas star and name been brought into focus in the bypast decade.In the long time since the September 11, 2001 terrorist accesss, hundreds of people reserve been detained by the United States g overnment as vary of its state of war on terror. nearly of these detainees face unfixed detention and sire neither been aerated with a crime nor afforded prisoner of war situation. Habeas school principal serves to value citizens against arbitrary arrest, torture, and extrajudicial killings and is a fundamental personal liberty guaranteed by our geological formation and can non be suspend based on tha t fact.Habeas head (or writ of Habeas corpus ) is a judicially enforceable order issued by a healthy philosophycourt of legal philosophy to a prison official ordering that a prisoner be brought to the court so it can be heady whether or non that prisoner had been law of naturefully jail and, if non, whether he or she should be released from clasp. The goodly of habeas corpus is the constitutionally bestowed flop of a person to present proof onward a court that he or she has been wrongly imprisoned.The rights of writs of habeas corpus be give in Article I of the personality, which States, The liberty of the Writ of Habeas school principal shall non be suspend, unless when in Cases of Rebellion or invasion the public Safety whitethorn gestate it. ( Habeas principal in times of urgency Iowa State Review) A Habeas principal sum beseech is a petition charge upd with a court by a person who objects to his take or anothers imprisonment. The petition must arra ngement that the court ordering the imprisonment do a legal or real error.The right of habeas corpus is the constitutionally bestowed right of a person to present evidence before a court that he or she has been wrongly imprisoned. History The record of Habeas Corpus is ancient. It appears to be predominately of Anglo-Saxon harsh law origin, although the precise origin of Habeas Corpus is uncertain. Its principle effect was achieved in the nerve centre ages by use of similar laws, the sum of which helped to mold our current policies. Habeas Corpus has since the early times been employed to compel the fashion of a person who is in men to be brought before a court.Habeas Corpus was generally unknown to the various law systems of Europe which are generally devolved from papistical law. European civil law systems fly the coop to favor collective authority from the top out down while the Anglo-Saxon popular law tends to favor the individual. As a feature of common law, the rig ht of Habeas Corpus reflects the age old contest among the individual and the state. Habeas Corpus em creators the individual in holding accountable the exercise of the states power to influence liberty. The warfare on TerrorIn the years since the September 11, 2001 terrorist attacks, hundreds of people have been detained by the United States government as part of its war on terror at locations such as the Guantanamo Bay marine Base in Cuba and Bagram Airfield in Afghanistan. Most of these detainees have faced indefinite detention and have neither been charged with a crime nor afforded prisoner of war Status. Many of these detainees have sought to use habeas corpus proceedings to challenge the integrity of their detention.The United States government initially took the part that habeas corpus was not available to detainees because of their status as enemy fighters and their location alfresco of the sovereign territory of the United States. In 2004, the United States Supreme Co urt influenced that non-citizen detainees at Guantanamo Bay were authorise to file habeas corpus petitions in national courts. coitus subsequently made a political determination as to the appropriate mise en scene of habeas corpus and passed legislation that, stripped federal courts of jurisdiction to hear habeas corpus petitions brought by enemy combatants.This ruling was then abruptly overturned. The question of whether detainees such as those at Bagram and Guantanamo Bay should have access to habeas corpus is a complex one. It involves issues of territorial jurisdiction, dissolution of powers, and the status of the individuals. However, at a more basic level, this question should ask as to the nature of the right of habeas corpus and the pertinency of the rule of law during national aegis emergencies. At this level, the situation presented by detainees at Guantanamo Bay or Bagram is not wholly unique.It represents another example of those situations in which governments have attempted to cover the availability of habeas corpus based on real or perceived threats to national certification. On Oct. 17, 2006, hot seat Bush signed a law suspending the right of habeas corpus to persons refractory by the United States to be an enemy combatant in the Global War on Terror. prexy Bushs action drew strong critical review, mainly for the laws chastisement to specifically rate who in the United States will determine who is and who is not an enemy combatant.This however was not the first time in the account of the U. S. Constitution that its guaranteed right to habeas corpus has been suspended by an action of the President of the United States. In the early geezerhood of the U. S. Civil War Abraham Lincoln suspended writs of habeas corpus. Both electric chairs based their action on the dangers of war, and both presidents faced sharp criticism for carrying out what many believed to be an attack on the Constitution. President Bush suspended writs of ha beas corpus through his support and sign language into law of the Military Commissions Act of 2006.The eyeshade grants the President of the United States almost outright authority in establishing and conducting military commissions to try persons held by the U. S. in the Global War on Terrorism. In addition, the Act suspends the right of unlawful enemy combatants to present, or to have presented in their behalf, writs of habeas corpus. 1. Jonathan Turley, professor of constitutional law at George Washington University stated, What, really, a time of shame this is for the American system. What the Congress did and what the president signed today essentially revokes over 200 years of American principles and values. To which I agree.The Presidents decision to deny the detainees prisoner-of-war (POW) status rests a point of contention, especially overseas with around rock that it is based on an inaccurate comment of the Geneva Convention for the Treatment of Prisoners of War , wh ich they assert requires that all combatants gripd on the field of operation are authorise to be hardened as POWs until an independent tribunal has determined otherwise. The Geneva Conventions of 1949 create comprehensive legal specifications for the treatment of detainees in war. Members of a even armed force and certain others divvy up entitled to specific privileges as POWs.Members of voluntary corps, militias, and organized resistance forces that are not part of the armed services of a party to the conflict are entitled to POW status if they meet quaternity criteria specified in the treaty. Groups that do not meet the standards are not entitled to POW status, and their members who commit belligerent acts may be treated as civilians infra the Geneva Convention Relative to the protection of Civilian Persons in Time of War. ( Terrorism, the faithfulnesss of War, and the Constitution Policy Archive ) These unlawful combatants are not afforded immunity for their hostile acts.A petitioner must be treated as a prisoner of war until a competent tribunal has decided otherwise, and that a military commission may not proceed with their trial. Although some 250 detainees (including three children below the age of 16)13 have been released from the detention facilities at the U. S. Naval Station in Guantanamo Bay, Cuba, and some detainees are being rewarded for cooperation with better alert conditions while the status and treatment of detainees who remain in workforce continue to be a source of contention. (Enemy Combatants Journal, Wuerth) SummaryThe Constitution provides Congress with ample authority to draw the treatment of battlefield detainees in the custody of the U. S. military. The Constitution empowers Congress to pass water rules regarding capture and to define and punish violations of international law, and to make regulations to govern the armed forces. (Policy Archive) Congress in addition has the constitutional prerogative to declare wa r, a power it has not yet exercised with regard to the armed conflict in Afghanistan. By not declaring war, Congress has implicitly redefined what was clear stated in the Constitution concerning the treatment of detainees.The Administration has asserted that the war on terror is a new harming of conflict, requiring a new set of rules and definitions. However it is clear that there has been a failure to expeditiously process and, if appropriate, prosecute detainees in the custody of the United States, including those in the custody of the United States. References 2. Hamdan v. Rumsfeld, 344 F. Supp. 2d 152 (D. D. C. ,2004), revd 413 F. 3d 33 (D. C. Cir. 2005), cert. granted 2005 U. S. LEXIS 8222 (Nov. 7, 2005). 3. Habeas Corpus in Times of Emergency A Historical and Comparative View Brian Farrell University of Iowa College of Law . The War and the Writ Habeas corpus and security in an age of terrorism by Jonathan Shaw January-February 2009 (Harvard Magazine) 5. U. S. -Freed Combata nt Is Returned to Saudi Arabia, L. A. TIMES, Oct. 12, 2004, at A8 Jerry Markon, fuss Denounces Hamdis Imprisonment Son constitute No Threat to U. S. , He Says, WASH. POST, Oct. 13, 2004, at A4. 6. Terrorism, the Laws of War, and the Constitution Policy Archive www. policyarchive. org/ negociate/10207/bitstreams/11854. pdf 7. The Presidents Power to Detain Enemy Combatants www. pegc. us/archive/Journals/wuerth_Cinn_power_to_detain. pdf