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The role of the President as Commander-in-Chief.

The Right of Habeas Corpus in the Context of the War on Terror

Write an essay about the right of habeas corpus in the context of the war on terror. Your essay should

address the following subtopics:

-Explain the historical evolution of habeas corpus, including its English and American traditions.
-The explanation of its evolution within the American tradition should include the general meaning of the
right of habeas corpus in the U.S. Constitution and its relationship to the protection of other civil liberties.
-Provide examples from U.S. history of the suspension of habeas corpus and their applicability to the


-Analyze the relevance of habeas corpus to the contemporary U.S. situation during the war on terror,
especially with respect to persons characterized by as enemy combatants or illegal combatants.
-Explain the U.S. Supreme Court’s interpretation of the right of habeas corpus with respect to enemy
combatants or illegal combatants (i.e., the views of the five justices making up the majority in
Boumediene v. Bush as well as the views of the four dissenting justices).

-Evaluate a minimum of four perspectives on this topic expressed by justices of the Supreme Court,
leaders in other branches of government, and commentators in both the academic and popular media.
Your evaluation should consider perspectives on the following topics as they relate to habeas corpus:

-The role of the President as Commander-in-Chief.


-The role of Congress in determining when habeas corpus can be suspended.

-The role of the Supreme Court in protecting civil liberties, including the judicial philosophy which should

guide the Court in this role, and

In your evaluation, you should also include your personal philosophy, values, or ideology about the
balance between civil liberties and national security in the context of an unending war on terror.


The Right of Habeas Corpus in the Context of the War on Terror


Habeas corpus or great writ is a court order that requires that a detainee being held by a
government be produced before the court on a certain date so that the court can determine
whether he/she is being held lawfully or unlawfully. The official or authority holding the
individual must prove to the court that he has the legal authority to hold the detainee in his
custody and if he cannot prove this, then the court may order the detainee to be released. The
main purpose of the great writ is to protect the right of individuals from governments that might
want to deny them their human right to a fair trial, which is the tool of choice used by
governments that perpetuate tyranny. Habeas corpus is the very foundation of democracy, which
is based on the separation of powers between the three arms of government, giving power to the
judiciary in their mandate to keep the executive from abusing their power. Habeas corpus is
extremely important in the 21 st century given the globalization of terrorism and the existing US
policies that allow the US government to detainee terrorism suspects for years without charging
them (Pallitto, 2014). This paper intends to prove that no country, especially the United States,
should ever suspend the habeas corpus rights of any detainee regardless of the reasons for the
detainment, even if he/she is a terrorist suspect.

Historical Evolution of Habeas Corpus

Habeas corpus originated in England as early as the 13 th century during the reign of King
Edward I, where he issued writs on the ground that he needed to know whenever the liberty of
any of his subjects was restrained no matter where the restraint was taking place. The Habeas
Corpus Act of 1679 enshrined the provisions of habeas corpus as a constitutional right of all
English citizens; the writ was usually issued by the royal courts on behalf of the sovereign to

lower courts, prison officials or the sheriff. The Habeas Corpus Act of 1816 added more scope in
terms of the territory covered by the act, but recent times have seen the act suspended in light of
periods of war such as the two world wars where the government could detainee enemies without
habeas corpus being applicable to the detainees (Jackson, 2010). The United States adopted
habeas corpus from the English and when the initial thirteen American colonies declared their
independence and became a republic, any person could issue such rights based on the principle
of popular sovereignty, which was made possible by the 1789 declaration of the rights of man.
The right to the writ of habeas corpus is enshrined in the US constitution Article One, Section 9,
but even from early times the writ has been suspended in times of war, such as by President
Lincoln during the Civil War and the Reconstruction. However, these suspensions are only
applicable in times of public invasion or rebellion.
Habeas Corpus in the United States
The right of Habeas Corpus within the U.S constitution is enshrined in Article One,
Section 9, which clearly states that the right of habeas corpus cannot be suspended unless in
times of rebellion or public invasion. This right has long been viewed as the key to the separation
of powers within the U.S system of government between the executive and the judiciary where it
acts as a check on the illegal detention of suspects by the government. In recent times the right of
habeas corpus has threatened by new legislations during the Bush administration, especially after
2001 where the government started its global war on terror. However, civil rights movements
and lawyers have continued to push for changes in these legislations such as the Military
Commissions Act, which literally stripped suspects who were labeled as enemy combatants of
their habeas corpus rights. A victory for the supporters of habeas corpus within the U.S came in
the Supreme Court rulings of 2008 where the majority of the judges voted to restore habeas

corpus rights for detainees held at Guantanamo Bay prison that had not been charged in court for
many years (Burton, 2008). Habeas corpus is also crucial for the protection of civil liberties such
as the right to hold peaceful demonstrations and workers’ strikes, which signifies its importance
as a tool for the preservation of civil rights for all Americans.
Relevance of Habeas Corpus to the Contemporary U.S Situation
The current situation within the U.S sees the country engaged in an indefinite global war
on terror with the government having suspended the writ of habeas corpus for all prisoners
labeled as enemy combatants held by the U.S, especially in foreign countries. Now, there might
have been noble intentions to protect the lives of civilian Americans and military personnel on
the battlefields, but as the years elapse and the war still goes on, it appears that this suspension is
only being used to protect the government (Fallon Jr., 2010). Evidence indicates that most of the
detainees being held by the U.S at Guantanamo Bay prison have not been charged or convicted
of any crimes and are actually being tortured by the government for information they might not
have. Most of these detained had petitioned for habeas corpus and claim that they are not
enemy combatants, yet the army has not provided any evidence against them that proves they
are terrorists, but they do not want to release these prisoners. This is the exact situation that led to
the creation of the writ of habeas corpus, and I believe that it is applicable to these terror
U.S Supreme Court’s Interpretation of the Right of Habeas Corpus
In the case of Boumediene et al v. Bush, the Supreme Court rule upheld habeas corpus
rights for Guantanamo Bay prisoners in a highly divided vote with five justices voting in favor of
the same and four justices being vehemently opposed to it. The five majority justices through
Justice Anthony Kennedy criticized the Bush administration for continuing to use the

Guantanamo base as place of judicial limbo where it hold prisoners indefinitely without regard
to domestic or international law. Kennedy also wrote that their decision upheld the credibility of
the judiciary given that they had a responsibility to hear cases challenging the authority of the
executive branch to imprison a person. The four dissenting justices led by Chief Justice John
Roberts wrote that the majority decision was unwarranted and that the laws set by congress ere
enough to protect the rights of detainees at Guantanamo and that the court was granting the right
to habeas corpus to aliens held abroad by the military. He further argued that the courts actions
would endanger American lives and lead to further loss of American lives both at home and
Perspectives on the Topic
Justice Anthony Kennedy of the Supreme Court states that the role of the judiciary in
upholding the right of habeas corpus was to protect the civil rights of all detainees by the
executive, especially when it seems that the executive was abusing its power. He also pointed out
that congress cannot decide to suspend sections of the constitution at will, but all acts of congress
should be in line with the U.S constitution, which is supreme. The role of the president was also
clearly defined as that of Commander-in-Chief and that even he did not have the power to
arbitrarily detain prisoners without charging them for years and he could not confer this power to
the military.
Chief Justice John Roberts of the Supreme Court states that the judiciary had violated the
basic human rights of civilians by according habeas corpus rights to aliens being held by the
military in foreign territories and that the judiciary was overstepping its authority in this case.
According to the Justice, congress and the executive are free to design whatever laws they deem
fit and the judiciary has no say I what they do, which would definitely cause judicial abdication

and lead to a police state. The Justice also expressly implies that the role of the President as the
Commander-in-Chief is unquestionable and the judiciary should not interfere with his military
duties to protect the lives of Americans.
Professor Jonathan Hafetz of Seton Hall Law School assesses the impact of habeas
corpus on the structure of American society and decries the steady decline in due process where
the government through its Commander-in-Chief is operating a Global detention system across
the world. On the other hand, congress continues to stifle the powers of the judiciary by passing
legislations that drastically limits the application of the right of habeas corpus and the authority
of federal judges to issue the great writs in relation to terror suspects (Hafetz, 2011). He also
points out that the judiciary play a critical role in protecting the civil rights of all Americans
within the criminal justice system and that military commissions are not an adequate
Professor Michael Dorf, a Law Professor at Columbia University clearly indicates that
MCAs take away habeas corpus rights by abandoning civilian courts with no good reason yet in
previous years civilian courts had tried and convicted terror suspects. The excess powers granted
to the executive are not warranted and they should be revoked (Dorf, 2006). The role of the
judiciary is also suppressed by the MCAs, which threatens the exercise of civil liberties in the
U.S. there is no substantial basis and evidence for the MCAs.
My personal philosophy on the right of habeas corpus is that the executive should not
oppose the application of habeas corpus rights in the fight against terrorism because if they are
legally holding the detainees, the courts will justify the imprisonment. My argument is that the
government is holding the detainees illegally without any evidence, which explains why they

cannot be charged in court, and the judiciary should uphold habeas corpus so as to protect the
civil rights of detainees.


In conclusion, the arguments presented above prove that even in the global war on terror,
there is no justification for the suspension of habeas corpus rights by any government, while
actually all governments should support this writ. If there is sufficient reason and evidence for
holding a prisoner designated as an unlawful enemy combatant, the courts cannot release such a
prisoner, but as in most of the cases for Guantanamo detainees, the suspension of habeas corpus
just provides a judicial limbo for the U.S government to imprison and torture individuals
indefinitely without putting them to trial. This goes against international law and human rights
and the U.S government should be held accountable by its judiciary through the writ of habeas



Burton, J. (2008, June 13). U.S Supreme Court upholds habeas corpus for Guantanamo Bay

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