Right of Habeas Corpus Research Paper.

For about 800 years, the rights of Habeas corpus are seen a wall against the
unrestricted exercise of administrative power, first in Britam and then to the United States.
From 1219 to the Bush administration, the argument was for a stronger executive, that in times of crisis and emergency, it could preserve and protect the homeland, even if it means restraining personal freedom in the process. Habeas corpus has existed in the American
Colonies prior to the adaptation of the constitution. Habeas corpus is a writ, which requires that a person under arrest must be presented before a court of law (Freedman, 2001). Right of Habeas Corpus Research Paper. This principle ensures that a prisoner under illegal detention can be released from prison, which is
when there is lack of enough evidence or cause to continue holding the person.

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The writ is one of the common laws, which were given out by the English courts to regulate inferior
courts as well as public authorities in the kingdom. In many of this colonies, there were claims of a common law right to habeas corpus as well as others, there were provisions assuring the availability of habeas corpus. United States and England have struggled with balancing the act, which is mirrored in the evolution of habeas corpus (Freedman, 2001).
After over 500 years of development, habeas corpus evolved into a vigorous check on
the crown power to detain people arbitrarily. Throughout the United States History, the rights
to Habeas corpus have propagated the English traditions of being a check on the executive
power, and thus strengthening the separation of power. In the United States, habeas corpus is
included in the constitution. The writ is a civil proceeding in which courts inquire as to the legality of a detention (Lessig & Cass, 1994). The proceedings are therefore to determine if a
court that imposed a sentence on a person had jurisdiction as well as authority to do so, and whether the person’s sentence had expired. Under the constitution, the government of United States can suspend with no
questions the special consideration of habeas corpus if it is in the benefit of the public safety. Right of Habeas Corpus Research Paper.
There are two vital examples of when the rights of habeas corpus were suspended in the
United States history. During the reign of Abraham Lincoln, after the eruption of the civil
war, Lincoln ordered for the suspension of the writ. This allowed for the detained adherents
of military, suspected spies, and prisoners of war and traitors to be detained during the whole
war without being tried. President Jefferson Davis suspended the right of habeas corpus in the
confederation States.
In the Second World War, the right of habeas corpus was again suspended in the case
of the Japanese detainees and in connection to the German prisoners held in the United
States. In the recent years, there have been many proposals for the suspension of the writ with
respect to individuals arrested or suspected of acts of terror. This has brought a lot of
controversy, many saying that US citizens need protection, and with international
communities criticizing the detention of people in Guantanamo Bay since the 9/11. In
October 2001, the patriot act authorized the detention without trial of foreigners suspected of
link with terrorist groups. In December 2011, the National defense Act was signed by
President Obama, which authorizes the indefinite detention with no trial of any United State
citizen labelled as an enemy by the government. This includes any person linked with the
terror groups and any person who takes part in hostile activities against the US.
In the contemporary United States, habeas corpus is highly crucial to the current
situation has it has to do with protecting people charged with crimes. Under the writ, the government must justify the reasons to detainee a person. They must show that they have the
right to hold the person for the duration they wish is necessary. However, in the current
situation, where efforts are concentrated on war on terror, there is controversy as to how to apply the right of habeas corpus. Questions are raised on whether the government should hold
people for long periods as enemy combatants without actually charging them in a court of
law (Fakhimi, 2005). With the current war against terror, the government of United States has
come up with legislations that allow for the withdrawal of habeas corpus with respect to
suspects of terror. During the Bush administration, and after the 9/11 attack, the government
passed a legislation, the patriot Act, which allowed for detention of foreign persons suspected
of terrorism acts without trail. This led to the opening of the Guantanamo Bay detention
facility to hold this people. This facility was on land leased from Cuba, which made it beyond
the jurisdiction of the US courts. Therefore, application of the writ to the detainees was hard,
and this led to international outcry for the rights of the detainees. Right of Habeas Corpus Research Paper.
To bring justice to these prisoners, tribunals were created and military commissions
by the president decree. This enabled the trial of foreigners suspected of links to al-Qaida or
those suspected of acts of international terrorism. Nevertheless, the US administration was
determined to win the war on terror, and the facility has been one of the most controversial
issues in the US politics (“Supreme Court Affirms Habeas Corpus for Guantánamo
Detainees,” 2008). In 2011, under the Obama administration, the government signed into law
the National Defense Authorization Act. This act allows for the detention of people of US
citizenship without trial, if they are labeled as enemies of the state. The law is concerned with
people they link to terrorism group and acts. The law allows the government to lash out at
any defense organized to protect the constitutional rights of the citizens who have been
designated as enemies of the United States.
After the detentions that followed the 9/11 attack, center for constitutional rights took
cases to the federal courts. The most notable is the Boumediene vs. Bush. In Boumediene vs.
Bush, the case in front of the Supreme Court concerning the detainees in the Guantanamo Bay camp, established that the existence of a rule of habeas corpus for enemy combatants
outside the United States is not determined by simple formalistic approach. Initially the
government had successfully argued that the detainees were in legal hole, without any right to
access the federal courts. However, as the court said, the mutual thread of Supreme Court
jurisprudence is that query of extraterritoriality turn on impartial factors as well as practical
concerns, not formalism. To determine the existence of a right to habeas corpus review, the
factors of the Boumediene vs. Bush case must be looked at according to these three factors.
They led the court to conclude that the defendants were entitled to habeas corpus review.

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The first is the citizenship of the detainee as well as the adequacy of the process of
making the determination. The second factor is the nature of the site. This is where the
detention and apprehension took place. De jure, sovereignty is not a requirement for habeas
corpus rights to exist. However, the closer one is to the US sovereignty, the more the chances
of the existence of these rights. When weighing this factor, the court considered the level of
United States control, the permanence, and surrounding circumstances. In the case, the
Supreme Court found de facto control to be very great that it approached United States
sovereignty (Wert, 2011). As a result, the court granted habeas review. The third factor is the
practice of hurdles inherent in determining the prisoner’s right to the writ. This factor is
concerned with the hardship and dangers of extending the judicial actions into a dynamic
theater of war, and the likelihood that the exercise of judicial authority in a foreign state
might offend the government. The effects are that the more peaceful a detainee locale, the
higher the chances of habeas relief. Right of Habeas Corpus Research Paper.
Under these factors, habeas corpus rights were established to exist for the Boumedine
vs. Bush case detainees. The differing factor as found in the case is the different levels of
protection. This is the logical result given by the Supreme Court’s preference for a factor analysis. Therefore, applying the factors to the facts of a case, which it can be, established
whether a noncitizen, classified as an enemy combatant, would have constitutional right to
habeas corpus (Chesney, 2008).
According to the United States constitution, the president is the commander in chief
of the army and navy of the US, and of the militia of the states. After the 9/11, attack the
Authorization for military force against terrorists was passed by congress, which provided the
president with more authority upon his application of the powers of commander in chief.
However, the president does not reside in the legal text, but in presidential initiative to use his
authority, conferred by law, to put in prison any person without indictment. With respect to
congress, the suspension clause does not establish a right habeas corpus; instead, it restrains
the congress from restricting it. This has been a much-debated issue on whether the Clause
establishes a right that merely prevents Congress from prohibiting the state and federal courts
from giving the writ, or guards a common law right implementable by federal judges (Wert,
2011). Right of Habeas Corpus Research Paper.
The Supreme Court has a vital role in protecting civil liberties. The court is the only
institution that can overturn acts of the elected branches, if it considers that the acts violate
the constitution. In its capacity, the court can stop the elected branches from sacrilegious civil
liberties. An example of this was found in the determination of the Boumediene vs. Bush
case, where the court hit on the laws suspending the rights to habeas corpus for enemy
combatants in foreign states. The balance between civil liberties and national security is
highly dedicated more so, when the country is waging a war on terror (Chesney, 2008).
During the times of emergency, civil liberties should be lost, and their lack should be
accepted as well as normalized as features in the legal landscape. In this process of
normalization, actions are taken in the defense of the security of the country.

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References

A Government of Laws; Habeas Corpus, War and the Bush Administration. (2006,
September 25). The Washington Times, p. j1.
Chesney, R. M. (2008). Boumediene V. Bush. American Journal of International Law,
102(4), 848.
Freedman, Eric M. (2001). Habeas Corpus: Rethinking the Great Writ of Liberty. New York:
New York Univ. Press. Right of Habeas Corpus Research Paper.
Fakhimi, M. (2005). Terrorism And Habeas Corpus: A Jurisdictional Escape. Journal of
Supreme Court History, 30(3), 226-243.
Lessig, L. & Cass S. (1994). “The President and the Administration,” Columbia Law Review
94
Wert, Justin J. (2011). Habeas Corpus in America: The Politics of Individual Rights. Kansas:
University Press of Kansas
(2008). Supreme Court Affirms Habeas Corpus for Guantánamo Detainees. American
Journal of International Law, 102(4), 863. Right of Habeas Corpus Research Paper.