Nov 12th, 2013
By Dray Breezy
- History
- Judicial Review
- American Implementation of Habeas Corpus
- War on Terror
- Al-Qaeda
- Johnson v. Eisentrager
- Padilla/Hamdi Cases
- Boumediene v Bush
- Conclusion
Introduction
Sept 11, 2001. The day things all changed. On that day four United States domestic planes were hijacked by Saudi Arabian Islamic extremist terrorists and while one did not reach its target, three did. Those targets were the two World Trade Centers in New York and the Pentagon. That day marked the deadliest terrorist attack in American history and also marked the beginning of the American war on terror.
This war started in Afghanistan and then migrated to Iraq. This September will mark the twelfth year of the war and looking back it is difficult to analyze what we have accomplished. This war represented the first of its kind, a war on an idea more so than a country. For many, this war has similarities to the Vietnam war, in which our enemies are very difficult to spot and also fighting on their home territory. While many of the enemy combatants are killed or wounded, some are detained which creates many legal issues in regards to the morality and legality of detaining foreign citizens. At the forefront of these issues is the concept of habeas corpus and it’s applicability to aliens both combatant and noncombatant. Should these people be granted American constitutional rights or be at the jurisdiction of military courts? This essay will detail the history of the legal foundation of habeas corpus and use the precedents set to explain its importance in the war on terror.
History
The concept of habeas corpus has long history which stems long before the introduction of the Europeans into American. After the Norman conquest of 1066 which united many of the Anglo-Saxon territories a system needed to be put in place to hold people responsible for actions against the crown. During these feudal times, courts did not have much power over the constituents, therefore a mandatory summons was created in order to get people charged with a crime to show up to court. This was given the latin term “habeas corpus” meaning “you have the body”. (Jackson 77) This was used primarily by the crown as a subpoena of sorts however by the fourteenth century the use of the writ had changed drastically. Jackson writes, “…two important transformations were occurring. An individual could now initiate a habeas corpus proceeding, and the courts were now using habeas corpus to examine the grounds for the individual‟s detention” (Jackson, 2010) In many ways this was the first modernization of the writ, in splitting its power with the courts and spreading that power to the detained.
Judicial Review
In 1628 Parliament further checked the crown’s power by instituting habeas corpus in all matters of detention and implemented the petition of right which meant that the king could not imprison anyone without probable cause. This represented the first blossoming of judicial review in which Parliament had oversight into the imprisonment of political dissenters. This concept was further embedded into English law with the Habeas Corpus Act of 1640 which guaranteed that any person imprisoned by executive order could seek review from the common courts as well as including a stipulation on speedy process (three days) and fines imposed against judges that disobeyed this law. However disobedience of this law continued, with kings and lords opting to imprison people in Scotland and unknown places until 1679 when Parliament passed loophole free legislation rightly named The Habeas Corpus Act of 1679. Jackson writes, “The Habeas Corpus Act of 1679 limited movement of prisoners, prohibited imprisonment in Scotland, Ireland, the islands, and overseas, required judges to consider habeas corpus petitions in a timely manner, set time limits for the production and, if ordered, re-lease of prisoners, and guaranteed speedy trials. This legislation provided a strong foundation for habeas corpus laws that were being established in the American colonies.
American Implementation of Habeas Corpus
While the inclusion of habeas corpus into English common law took many centuries and many bloody wars, its inclusion into American common law was a given due to its perceived value for the common citizen. Previous to the U.S constitution, early American colonies such as Georgia, Massachusetts, and New Hampshire not only included the writ into their respective constitutions but denied its suspension under any circumstances. This should be of no surprise, America being the land of freedom and liberty. After the disaster that was the articles of confederation, the colonies decided to make a stronger contract for the country that would later become the U.S constitution. It was during those conventions the writ of habeas corpus was officially authorized. To this day the writ is the only common law that is included in the U.S constitution and its suspension can only be in times of “rebellion and invasion”. As of 2013 habeas corpus has only been suspended four times.
The first being just before the beginning of the American civil war. Although Abraham Lincoln did not receive Congressional approval, and the Chief Justice stating that the power to suspend habeas corpus rested solely in Congress, the suspension continued because Congress has no way to enforce their decision. This also led to Congress allowing presidential suspension of habeas corpus in 1863. Its second suspension was after the Civil war during an insurrection in four counties in South Carolina. The third suspension was issued in the Phillipines during an insurrection. Its fourth and final suspension was immediately after the Pearl Harbor bombings by the Japanese. This suspension was issued the governor of Hawaii and only applied to Hawaiian territory. (Terry, 2008)
While all of these suspensions have been verified by Congress and fall under necessity because they are explicitly stated in the Constitution as necessary, it is not until America’s later conflicts in which the writ and its suspension were legally scrutinized.
War on Terror
The war on terror has thrown a curveball in understanding the role of habeas corpus and its implication of those accused of being terrorists or involved with terrorism. This curveball has mostly been in the form of Guantanamo Bay (GB). GB was created in 2002 on land leased from the Cuban government as a facility to detain foreign enemies of the state. Because of the very nature of this facility and the lack of transparency, human rights violations were claimed almost immediately. Opponents of GB claim that this facility unlawfully suspends the right to habeas corpus and other civil liberties while proponents argue that GB is a necessary element in this war on terror. Before addressing the opponent’s argument one must first address the reasoning for the creation of GB in the first place and the reasons why American policy disfavors judicial oversight regarding the war on terror.
Al-Qaeda
Al-Qaeda is an opponent that the American military is not properly equipped to fight. While America relies on military strength, Al-Qaeda relies on coercion, manipulation, and fear. While America lightly attempts to follow the rules of the Geneva Convention, Al-Qaeda does not, in fact many of its members value the killing of innocents in order to accomplish its goals. As well as being in a foreign, rural country, this puts American soldiers at a huge disadvantage when attempting to defeat Al-Qaeda and its allies.
The problems presented when detaining foreign persons suspected of committing crimes against the state or military run deep. The ultimate question is whether the aliens in U.S custody should be granted the constitutional and judicial rights of U.S citizens. If so then they would all have to be extradited to the U.S and given due process, and if not then what judicial process should the detainees and courts follow? The first option is unreasonable given many different reasons. The witnesses that would need to provide testimonies are often still in combat and to remove them from their station would prove disruptive and costly. The paperwork and legalities that the government would need to provide would most likely not be available until the engagement or war ends as well as identification and extraction of foreign witnesses would be near impossible and also very costly. Therefore trying these foreign detainees in the U.S courts is removed as an option, leaving the state with only the final option which is creating an entirely new system. (Terry)
Johnson v. Eisentrager
While this new system would have to be entirely within the restrains of Congress and the Supreme Court, there have been precedents regarding habeas corpus and detaining alien citizens. The precedents set the course for the Supreme Court decision in Boumediene v. Bush.
Johnson v. Eisentrager was the first major case that dealt with habeas corpus in regards to a German detainee at an American facility in Germany. This case set the precedent for stripping or suspending habeas corpus privileges under the argument that although the base was under de facto control of the American government, habeas corpus could be denied because the base was not part of U.S sovereign territory. Various cases such as Al Odah v. United States reinforced this precedent and allowed places like GB very little resistance from the Supreme Court in regards to their process of detaining foreign combatants. This precedent remained unchallenged until 2004 when the cases Rasul v.Bush, Padilla v.Rumsfeld, and Hamdi v.Rumsfeld, collectively known as the Enemy combatant cases hit the Supreme Court. It was through these cases that the Supreme Court started to sing a different tune. They reversed their Eisentrager precedent stating, “ Because subsequent decisions of the court have filled the statutory gap that had occasioned Eisentrager’s resort to ‘fundamentals’, persons detained outside the territorial jurisdiction of any federal court no longer need rely on the Constitution as the source of their right to federal habeas review.” (Jackson, 2010) The Supreme Court argues in these cases that while they may not have jurisdiction over GB, they have jurisdiction over military personnel and that is extended upon the detainees of those military personnel.
Padilla/Hamdi cases
While the Rasul case granted habeas claims to labeled enemy combatants, the Padilla and Hamdi cases established habeas review for U.S citizens accused of being enemy combatants. While the Supreme Court did not explicitly overturn the precedent, due to the differing conditions of the detained and the nature of their capture they created an avenue for hearing habeas claims from Guantanamo Bay in federal court. These decisions marked a split in ideologies between the Supreme Court and Congress which sparked a battle that would continue for years to come.
The Supreme Court’s decisions in the enemy combatants’ cases were quickly suppressed in 2005 by Congress with the creation of the Detainee Treatment Act. This act explicitly states that no judge, court or justice may exercise jurisdiction over GB (Terry). With the passing of the act Congress wanted to restore the balance created with the Eisentrager decision but the Supreme Court severely limited the act in Hamdan v. Rumsfeld in which it decided that the act would only apply to detainees incarcerated after the date the bill was passed. This led to the climax of the habeas corpus battle raging in American politics and the war on terror which was Boumediene v. Bush.
Boumediene v Bush
This landmark case was the culmination of all the cases regarding habeas corpus from Eisentrager to Hamdan. After the Hamdan case the Congress continued its fight against the liberalism of the Supreme court and passed the Military Commissions act of 2006 which frightened many due to its similar qualities to McCarthy era tactics such as hearing and considering hearsay evidence against detainees, restricting detainees from learning or refuting evidence labeled as classified, and also the use of evidence extracted through torture. (Lawson, 2012). This act allowed these military tribunals to have an extremely unfair advantage against detainees for a number of reasons. One being that hearsay evidence often has no validity and can be fueled or motivated for reasons other than justice. Extensive research has shown that torture often causes victims to lie and otherwise make up information, sell out innocent people in order to cease being tortured. Personally I believe this act contradicts the ideals that America was built on such as liberty, and freedom. However any objections to this act would have to legally play out, which occurred in Boumediene v.Bush.
This case was one of the tightest cases in Supreme Court history with the final result being 5-4. Justice Anthony Kennedy wrote the majority opinion arguing that the right of habeas corpus applies to persons in GB. He argues that if that right is to be stripped by Congress, an equal substitute must be put in place. The amicus curae briefs filed in support of Boumediene clearly establish that section 7 of Detainee Treatment Act and the Military Commissions Act do not provide a substitute and are therefore unconstitutional. (Farrell, 2010) This decision marked the Supreme Courts firm stand on the civil rights of person detained in GB and allowed for the precedent that Eisentrager set to be fully struck down.
While the Supreme Court’s decision was final, the dissenting opinion by Justice Scalia represents the view of many, especially of the military which is that the military knows best. Scalia argues that history has proven that detainees that were released often go back to combat and help the enemy, stating, “the incredible difficulty of assessing who is and who is not an enemy combatant in a foreign theater of operations where the environment does not lend itself to rigorous evidence collection”, so therefore we should allow the military to use its best discretion because they have more of an understanding of the people they are dealing with. While Scalia does have valid points, as stated earlier, the combat situation in Iraq and Afghanistan made it difficult to secure credible witnesses and evidence, making the flaws in his argument quite clear. While the military is composed of a lot of brawn, as many know brains are quite limited. The military is needed to be the limbs of the government while the Supreme Court is the heart. Both are needed to function and both are needed to thrive. While the military is good at enforcing laws, it can be seen throughout history what happens when the military has no judicial oversight and is in complete power. Misogyny and brutalities run rampant and many times militaries choke on their own power. It takes the rational minded people of the Supreme Court to check the military’s power and make sure that they are guaranteeing ALL humans civil liberties.
Conclusion
The concept of habeas corpus has been so firmly established in American government that its removal would be absurd and fought against vehemently. Through its development in the English territories one can see its necessity and with its migration to America and the swelling of government power that necessity increased all the more. The war on terror has been a long a violent struggle against extremism but it seems that after these long 12 years what have we accomplished? In fact international terrorist attacks increased by 300 percent from 2003-2004, the most intense years of the war. (Cole,, 2007) In fighting with Al-Qaeda we’ve adopted many of their ways. Detaining citizens indefinitely is a mark of Al-Qaeda as well as holding hostages in foreign places. The Supreme Court shouldn’t have to fight for the civil rights of aliens, whether they are labeled combatant or not they are still human and still have families. In indefinitely detaining and murdering brothers, fathers, sisters and wives aren’t we creating more enemies than we’re saving? These are question that the American people need to ask themselves when analyzing our relationship with the world and the effect this war has had on our notion of liberty and freedom. Injustice anywhere is a threat to justice everywhere and while we may still be the city on a hill there may come a day that we may be in the crosshairs of another nation’s “national security”.