Habeas Corpus is known as the Great Writ because it ensures that a person detained by the government is entitled to a judicial hearing to determine if there is any legal basis for their detention. The modern form of Habeas Corpus has evolved over the years, from it beginnings in England, to its addition to the US constitution. While Habeas Corpus pertains to every citizen that is tried in a US court, there is an argument as to weather habeas also applies to alien prisoners that are being held by the US government, on foreign land.
In 2002, The Supreme Court began to get involved in this argument, considering the level of the war on terror was high and the Bush Administration had just developed GITMO prison. The argument between the President and the Supreme Court continue today. The question that needs to be answered is: should aliens that are under U. S. detainment on foreign land be entitled the right of habeas corpus? The term habeas corpus was first used in England in the 14th century, but didn’t become official until the 1679 Habeas Corpus Act was passed in Great Britain.
Prior to the Revolutionary War, British soldiers were holding colonist without allowing them to exercise their right of habeas corpus. This was one reason that sparked the Revolutionary War. As a result, the founding fathers of America added habeas corpus to The Constitution of the United States, saying that “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it” (Article 1, Section 9) (The Columbia Encyclopedia. 2011, p. 1). To this day, citizens that have been charged with a crime enjoy the right of habeas corpus, usually in federal appeals.
Habeas Corpus protects the civil liberty of citizens, as it assures them a chance to be heard by the highest court in the land. In contemporary America, as it relates to the war on terror, habeas corpus has been suspended in some cases, especially when holding foreign prisoners in GITMO prison. The suspension of habeas corpus is not something new. In America history, especially in times of war, Presidents will go to extremes to protect the safety and freedom of his fellow Americans. During the civil war, President Lincoln suspended the right of habeas corpus any times, including setting up boundaries across state lines, where if confederate soldiers where caught crossing, they would be detained without habeas corpus. Foner, (n. d. ) says that President Lincoln even ordered that confederate soldiers and non-soldiers who supported the south be arrested on sight and held without habeas corpus. Since that time the Presidents power in times of war has overridden that of the Supreme Court and even the Constitution. This power continues today, as the last two Administrations have flexed their muscles and suspended the right of Habeas Corpus a number of times, as it relates to the War on Terror.
In recent times of war, the Presidents have made dictator type of decisions as they relate to imprisonment and interrogation of “illegal combatants”. Levin-Waldman (2012) says that in 2001 “As part of the War on Terrorism, Congress passed the Patriot Act, which allowed federal law enforcement officials to arrest those suspected of terrorism and hold them indefinitely without trial. ” The FBI would go around the country and arrest suspected terrorist, detain them for weeks, interrogate them, all while never allowing the person to exercise their basic rights. Soon after the attacks on the World Trade Centers in 2001, and after the U. S. military entered Afghanistan, the Bush Administration set up a prison, within a U. S. military base at Guantanamo Bay, Cuba. They choose Cuba because, it being another country, the Supreme Court had no jurisdiction to review cases. In this prison, afghan soldiers, who were also classified as “enemy or illegal combatants” were held on suspicion of terrorism. The US government could hold these combatants without having to extend to them habeas corpus because circuit courts continually denied appeals by prisoners saying that habeas does not apply to an alien detained at an overseas military base.
The military could detain and interrogate these “enemy combatants” quickly, without going through the appeals process, in order to obtain valuable information. In 2002, Lakhdar Boumediene, an Afghan soldier was captured by Bosnian police and then turned over to the US military, where they then sent Boumediene to GITMO to be interrogated. Boumediene filed a petition for a writ of habeas corpus, alleging violations of the Constitution’s Due Process Clause, various statutes and treaties, the common law, and international law (Oyze. 2008, p. 1).
The government filed a motion to have all claims removed on the ground that “Boumediene, as an alien detained at an overseas military base, had no right to a habeas petition” (Oyze, 2008, p. 1). U. S. Court of Appeals for the D. C. Circuit affirmed the dismissal but the Supreme Court reversed the dismissal in Rasul v. Bush, which held that the habeas statute extends to non-citizen detainees at Guantanamo” (Oyze. 2008, p. 1). In 2006, to counter act the Supreme Court’s decision that gave Boumediene the right of Habeas Corpus, Congress passed the MCA or Military Commissions Act.
The MCA eliminates federal courts’ jurisdiction to hear habeas applications from detainees who have been designated (according to procedures established in the Detainee Treatment Act of 2005) as enemy combatants. The Supreme Court would go on to rule on the cases again, this time considering the MCA, but voted 5-4 in favor of Boumediene. Justice Anthony Kennedy wrote “the procedures laid out in the Detainee Treatment Act are not adequate substitutes for the habeas writ, the MCA operates as an unconstitutional suspension of that writ” (Oyze. 008, p. 1). Justice Stevens voted with the majority and Justice Souter filed a concurring opinion, which Justices Ginsburg and Breyer joined. Chief Justice John G. Roberts and Justice Antonin Scalia filed separate dissenting opinions, which Thomas and Alito joined. Scalia and Roberts wrote that it was not the Supreme Court’s right to get between Congress and the President involving issue on foreign affairs such as war time or prisoners of war and it was certainly not the history of the Supreme Court to get involved either.
They point out various other cases of prisoners of war where habeas was suspended, and not once did the Supreme Court ever got involved. After reading certain Justices opinion’s and then understanding both positions on the argument of weather habeas should be extended to aliens on foreign soil or not, it is my opinion that the President should have the ultimate power in decisions of foreign affairs, during war time, when dealing with “enemy combatants”. During times of war the military has to deal with the enemy in a certain way.
Valdek, (2010) explains how the Obama Administration has continued many of the counter terrorism programs begun or expanded by the Bush Administration, including initiatives heavily criticized by then Senator Obama during his presidential campaign. Valdek brings up points that the current Administration is relentlessly defending the merits of the detention of those non-citizens still in custody at Guantanamo Bay, and they continue to defend their authority to try certain of the detainees before military commissions.
Much of that authority was derived form the Military Commissions Act of 2006, which Obama heavily criticized before he was elected. The evidence that Obama has now changed sides on much of this issue shows that Executive Power in necessary when it protects the liberty of America and her people. Circuit courts are wise to approve suspension of habeas for aliens on foreign land because it understands that military officials have been trained in wartime decision-making and that it should be left to the military courts to decide these affairs.
Though I understand the Supreme Court’s role to protect the civil liberties of US citizens, I do not see a need for the Supreme Court’s interference on Military affairs involving aliens on foreign land leased by the US. The Supreme Court should show restraint in these situations and allow Congress and the President to sort these issues out. My philosophy in this matter is that Habeas Corpus should not be extended to aliens on foreign land, leased by the US government for military purposes.
The military is in a unique position to quickly obtain certain information on terrorism from “enemy combatants”. The Supreme Court only stalls this process and valuable information, such as locations of terrorist groups, will be irrelevant. I respect human liberty, and believe in equality, but when it comes to National Security, as it relates to the war on terror, I put my trust in the President and his trained military. To answer the question of weather aliens on foreign soil should be extended the right of Habeas Corpus, I say no.