Civil Liberties, Habeas Corpus, and the War on Terror

Civil Liberties, Habeas Corpus, and the War on Terror

By

Bertie Lorine Franks

Instructor: Victoria Schmidt

POL 201, American National Government

Submitted: August 26, 2013

Habeas Corpus is the writ that is the Holy Grail that protects us against tyranny in the event it should ever come about. This writ, also at times, can causes hardship's that face the executive motions to enforce this law. What is disturbing is that during times of war, our attempts to suspend the writ of Habeas Corpus comes with much difficulty. I will explore the reason why the suspension would be warranted based upon insufficient constitutional

Grounds as well as attempts to analyze and develop the just cause as how and why Habeas Corpus became to be such a major role in the Bush verses Boumediene and why is it that war criminals have the right to petition for the writ of habeas corpus.

What is Habeas Corpus? This is a Latin term that means "have the body", but it roots come from England's common law and can be found throughout history. The law was first used in the reign of King Edward, 1st in the 1300's. Today, it is the most statured law that guarantees personal liberties in the United States. To further explain Habeas Corpus, it simply is a legal writ that protects and individual from being wrongfully imprisoned, whereas it requires any detainee be brought before a judge of court for formal charging. If the detainee is formally charged then he or she must file for a trial hearing in "due process". If the findings are not just and the custodian of the detainee has acted outside his scope, the prisoner must be set free. With that said, when can the Habeas Corpus be suspended? It can be suspended under Clause 2 of the Constitution whereas The Privilege of the Writ of Habeas Corpus and shall not be suspended unless in cases of rebellion or invasion of the public Safety. Should prisoners of war, those captured that wish harm to the United States, be allowed to file Habeas Corpus while they are not citizen of thee Untied States?

Today, the Habeas Corpus is used mainly in part as a post-conviction cure for any state or federal prisoners that wish to challenge the legality of a claim of federal laws that are meant to be used in a judicial setting resulting in detainment. Although, Habeas Corpus can also be used for other such cases as deportation, immigration, and in military commissions to name a few. First and for most, Habeas Corpus is used as a deciding factor in criminal cases such as unjust reason for detainment, relocating of another federal court district, failure to be provided a speedy trial by a jury of peers, as well as the legal aspects of extradition to another country.

During the civil war, President Abraham Lincoln suspended the Habeas Corpus and rightfully so as the constitution dictates in Clause 2. Under the Constitution, the federal government can and unquestionably suspend the privilege of the writ of Habeas Corpus if the public safety requires it during the times of rebellion or invasion. President Lincoln was met with some scrutiny by his constituents and was subjected to exploration of his judgment call. It was a question among many of those constituents as to who actually hold the power to suspend the Writ of Habeas Corpus, the President or Congress.

On May 25th 1861, a prime example of the Writ of Habeas Corpus was set in motion when John Merryman was arrested by federal troops in Cockeysville Maryland for supposedly recruiting, training, as well as leading drill companies for the Confederate corps. The attorneys of Merryman had petitioned the Chief Justice, Roger B. Taney for a writ of habeas corpus that ordered General George Cadwallader to present in court, with his prisoner to explain his reason for detainment. The general refused and on May 28th, Chief Justice Taney ruled that the president did not have the power to suspend habeas corpus. The days ahead Taney issued and opinion in support of his ruling and that only Congress could actually suspend the writ of Habeas Corpus. But Article II of the Constitution established executive power.

Immediately following attacks on Pearl Harbor, whereas this was another instance among other land marks eras where the Writ of habeas Corpus was suspended and martial law was imposed. Another mark in time for the writ suspension was in 1942 where eight German saboteurs that also included two U.S. citizens were convicted by a military court that was selected by President Franklin D. Roosevelt. This fell in