Analysis: The Privilege Of The Writ Of Habeas Corpus
The Privilege of the Writ of Habeas Corpus
POL 201 American National Government
Instructor: Professor D B
Aug 12, 2013
The Right of Habeas Corpus is derived from the Latin meaning “you have the body.” The meaning according to the U.S. Constitution is the right of any person to question their incarceration before a judge. The detainees of war are entitled to habeas corpus because the authorized use of military force does not activate the Suspension Clause, holding them indefinitely is a violation of the Due Process Clause, and it is undetermined whether the detainees are prisoners of war or citizens suspected of treason. As citizens of the United States we must consider if it is legal for the …show more content…
U.S. government to detain a person without Due Process or Habeas Corpus in any circumstances. The term “habeas corpus” is believed to have first appeared as early as 1305 as a concept as part of the common-law tradition at a time of Magna Carta, signed by King John, the law states “No freeman shall be taken, or imprisoned, or disseized, or outlawed, or exiled, or in any way harmed—nor will we go upon or send upon him—save by the lawful judgment of his peers or by the law.” McElroy W. (2012). This later in the seventeenth century was re-written and used to assistance by the lawyer and politician Sir Edward Coke. In 1628 he helped to draft the Petition of Right, which became a foundation of the document that is the English Constitution. Again a reinterpretation of Magna Carta had a philosophical impact on the American colonies, the agreements that were drafted during this period. Sir Coke may well have been one of the authors of the Virginia Company agreement. By 1679 our Founding Fathers drew on the Habeas Corpus Act, which passed Parliament during the reign of King Charles II. When it came to America, however, habeas corpus underwent a subtle but significant change. In America it began as a core protection that every individual enjoyed against any governing authority.
Although the reference is brief, the closest reference to habeas corpus occurs in the Sixth Amendment. The protections of our civil liberty are listed in the body of the Constitution. One of the most famous habeas corpus cases dates before the Civil War, a slave named Dred Scott, attempted to sue for his freedom. His inspiration came from a similar case in England, James Somersett an African-American slave that ran away from his master while they were both in England, James was later to be recaptured. Due to English supports against slavery obtained a writ of habeas corpus that required his captors to produce James Somersett in court where James Somersett sued for his freedom and won. The James Somersett case set a legal precedent that slavery is unlawful in England.
Nearly a century later Dred Scott pleaded to the U.S. federal court for a writ of habeas corpus; it was later approved and endorsed by a court of appeals. However, in 1857, in one of the most questionable cases in American history, the U.S. Supreme Court ruled against Scott seven to two. The Supreme Court establishes that no slave or descendant of a slave can be an American citizen meaning the Constitution only covered American citizens and Dred Scott did not possess the rights of habeas corpus under the Constitution. Which continue to be connected to slavery during the Civil War.
The Civil War had the first suspension of habeas corpus which came early in the war by President Lincoln in 1861, when an approximately 20,000 Confederate supporters in Baltimore tried to block the movement of Union troops to Washington, D.C. Among the thousands arrested was a cavalry officer John Merryman that ended up petitioning for a written habeas corpus. That case was presided over by Chief Justice Roger B. Taney, the same judge who presided over the Dred Scott case. Taney would go onto order the military to bring the Officer to the counts, which they refused referring to President Lincoln’s suspension. Chief Justice Roger B. Taney ruled that Lincoln’s suspension was unconstitutional and such measures would require an act of Congress.
President Lincoln ignored the ruling and expands the territory throughout which habeas corpus was suspended.
This suspension was so vague as to allow local authorities to arbitrarily arrest any person they considered to be disloyal or whose politics they merely disliked. Some of the individuals that where detain had done nothing more than complain about Lincoln. It was estimated that ten to fifth teen thousand people were detain and denied a prompt trial. Ignoring the Habeas Corpus Act, which limited the time an individual could be held without trial, which removed one of the most contentious aspects of the …show more content…
imprisonments.
By July 1862 the seconded suspension was initiated during the civil war when Congress instituted America’s first national military draft and President Lincoln unsheathed his seconded suspension of Habeas Corpus, this act interned incited widespread uprising. By March 3, 1863, Congress passed the Habeas Corpus Act, legitimizing Lincoln’s former suspensions and approving any others he might make for the duration of the war. Limiting the time a person could be held without trial, again removing one of the most contentious aspects of the imprisonments. It was not until 1866; with the court case ex parte Milligan, that the impropriety of the imprisonments themselves was put on trial. But the issue was legalistic and not based on civil liberty. The Supreme Court ruled that applying military tribunals to civilians in areas where civilian courts still operated was unconstitutional.
After the Civil War a lot of issues where finally resolved the one that stands out, whether the right to petition for habeas corpus was purely federal or extended to the states. A reconstruction act established that those held in state prisons and jails had the right to petition for a habeas review in federal court; this meant the writ applied to everyone imprisoned in America.
More recently one of the significant developments in habeas corpus within the last decade: Boumediene v. Bush (2008). The significant development began with a writ of habeas corpus, submitted to the U.S. Supreme Court on behalf of the foreign citizen Lakhdar Boumediene, who was imprisoned in Guantanamo Bay American military prison camp.
President Bush in November 2001 commissioned the military to try prisoners taken in Afghanistan or Iraq as “enemy combatants.” By early 2002 President Bush created Camp X-Ray located in Guantanamo and declared that the prisoners had no rights under the Constitution of the United States since they were not being held on American soil.
This did not stop the detainees from filing habeas corpus submissions over the next three years. In landmark ruling, 2004 the Supreme Court heard the first of these cases Rasul v. Bush. The court’s found that the American legal system had authority to decide whether foreign “enemy combatants” were being wrongfully detained. The Defense Department documented Combatant Status Review Tribunals—nonpublic hearings that determined whether detainees met the conditions needed to satisfy the designation of “enemy combatant.” The tribunals came under a lot of criticism for not fulfilling the requirements. In October 2006 in order to gain control over the growing criticism of the Guantanamo detainees, Bush signed the U.S. Military Commissions Act (MCA). Congress stated they plan to allow trial by military commission for violations of the law of war and for other purposes. The MCA explicitly abolished habeas corpus rights for noncitizens. But in the case Boumediene v. Bush President of the United States (2008) challenged the MCA by appealing to a clause in the Constitution which stated the right to challenge “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.” Rutherford Institute (2013). June of 2008 The U.S. Supreme Court delivered a stunning defeat to the Bush administration in a ruling that gives detainees at Guantanamo Bay a right to challenge their detention in federal courts.
Supreme Court struck down the MCA as an unconstitutional denial of habeas corpus with a decision of 5 to 4, which also declared the jurisdiction of federal courts over such petitions from Guantanamo detainees who had been tried under the MCA.
Even though our president preforms several different duties as part of holding the highest office of the country the one duty that stands out the most, is Commander-in-Chief of the US Armed Forces. Found under Article II of the United States Constitution provides the role as Commander-in-Chief who can make rapid and effective decision with certain constraints without hesitation an example is sending American forces to trouble spots around the world as an instrument of foreign policy. However the president cannot declare war without congress’s backing.
Over the last 25 years, our American troops have fought in many troubled areas around the world such as Grenada, Panama, the Persian Gulf, Haiti, Bosnia, Afghanistan, and Iraq. The United States has had detainees from every war and troubled area. These detainees have the right to Habeas Corpus unless congress determines that it involves a rebellion or invasion that threatens public safety congress can suspended Habeas Corpus. Military usage of Habeas Corpus has caused a lot of cases to be brought before the United States Supreme Court. The Supreme Court protects civil liberties, including the judicial philosophy guiding the Court in this role of protection of the constitution and of democracy as we know it today.
The Supreme Court Judges, Justice O’Connor, Chief Justice Kennedy and Justice Breyer stated, “At this difficult time in our Nation’s history, we are called upon to consider the legality of the Government’s detention of a United States citizen on United States soil as an ‘enemy combatant’ and to address the process that is constitutionally owed to one who seeks to challenge his classification as such…. We hold that although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker” (2004). Habeas Corpus should be honored regardless of where they are detained or the danger the government feels these people might pose. No human should be unjustly denied the right to face your captures and the reason why they are being detained. Just because the government or the military thinks a person is a threat to us or a terrorist, they do not have a right to detain them indefinitely without proper representation is wrong with today’s technology which was used to begin with to detain an individual. I believe the government needs to do whatever it takes to protect the citizens of our country and when the evidence is there than treat them according to the law. If a person whom has representation is proven not guilty then return them to their home country.
References
FindLaw (2013), HAMDI et al. v. RUMSFELD, SECRETARY OF DEFENSE, et al.
Justice O 'Connor announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice Kennedy, and Justice Breyer join. (2004)
Retrieved from: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=03-6696
Duker W.F. (1982), A CONSTITUTIONAL HISTORY OF HABEAS CORPUS, Harvard Law Review.
Retrieved from: http://web.ebscohost.com.proxy-library.ashford.edu/ehost/pdfviewer/pdfviewer?sid=fb4bb7c1-0f1c-469a-857b-ebf5db47b867%40sessionmgr115&vid=9&hid=108
Habeas corpus (2011). Habeas corpus. Columbia Electronic Encyclopedia (6th ed.), 1.
Retrieved from: Academic Search Premier (EBSCOhost) database, in the Ashford Online Library.
Jordan,C. (2011) Habeas Corpus: From England to Empire, Renaissance Quarterly, Summer2011, Vol. 64 Issue 2, p665-666, 2p. (Book Review)
Retrieved from: http://web.ebscohost.com.proxy-library.ashford.edu/ehost/pdfviewer/pdfviewer?sid=fb4bb7c1-0f1c-469a-857b-ebf5db47b867%40sessionmgr115&vid=9&hid=108
Levin-Waldman, O. M. (2012). American Government. San Diego: Bridgepoint Education Inc. Retrieved from: https://content.ashford.edu/books/AUPOL201.12.1 McElroy W. (2012), Laissez Retrieved from: z Faire Club, The Great Writ Then and Now, Retrieved from: http://lfb.org/blog/the-great-writ-then-and-now/
Oyez. (2008). Boumediene v. Bush. IIT Chicago-Kent College of Law.
Retrieved from http://www.oyez.org/cases/2000-2009/2007/2007_06_1195
The Rutherford Institute(2013), Constitutional Corner, Habeas Corpus Retrieved from: https://www.rutherford.org/constitutional_corner/habeas_corpus/
POL 201 American National Government
Instructor: Professor D B
Aug 12, 2013
The Right of Habeas Corpus is derived from the Latin meaning “you have the body.” The meaning according to the U.S. Constitution is the right of any person to question their incarceration before a judge. The detainees of war are entitled to habeas corpus because the authorized use of military force does not activate the Suspension Clause, holding them indefinitely is a violation of the Due Process Clause, and it is undetermined whether the detainees are prisoners of war or citizens suspected of treason. As citizens of the United States we must consider if it is legal for the …show more content…
U.S. government to detain a person without Due Process or Habeas Corpus in any circumstances. The term “habeas corpus” is believed to have first appeared as early as 1305 as a concept as part of the common-law tradition at a time of Magna Carta, signed by King John, the law states “No freeman shall be taken, or imprisoned, or disseized, or outlawed, or exiled, or in any way harmed—nor will we go upon or send upon him—save by the lawful judgment of his peers or by the law.” McElroy W. (2012). This later in the seventeenth century was re-written and used to assistance by the lawyer and politician Sir Edward Coke. In 1628 he helped to draft the Petition of Right, which became a foundation of the document that is the English Constitution. Again a reinterpretation of Magna Carta had a philosophical impact on the American colonies, the agreements that were drafted during this period. Sir Coke may well have been one of the authors of the Virginia Company agreement. By 1679 our Founding Fathers drew on the Habeas Corpus Act, which passed Parliament during the reign of King Charles II. When it came to America, however, habeas corpus underwent a subtle but significant change. In America it began as a core protection that every individual enjoyed against any governing authority.
Although the reference is brief, the closest reference to habeas corpus occurs in the Sixth Amendment. The protections of our civil liberty are listed in the body of the Constitution. One of the most famous habeas corpus cases dates before the Civil War, a slave named Dred Scott, attempted to sue for his freedom. His inspiration came from a similar case in England, James Somersett an African-American slave that ran away from his master while they were both in England, James was later to be recaptured. Due to English supports against slavery obtained a writ of habeas corpus that required his captors to produce James Somersett in court where James Somersett sued for his freedom and won. The James Somersett case set a legal precedent that slavery is unlawful in England.
Nearly a century later Dred Scott pleaded to the U.S. federal court for a writ of habeas corpus; it was later approved and endorsed by a court of appeals. However, in 1857, in one of the most questionable cases in American history, the U.S. Supreme Court ruled against Scott seven to two. The Supreme Court establishes that no slave or descendant of a slave can be an American citizen meaning the Constitution only covered American citizens and Dred Scott did not possess the rights of habeas corpus under the Constitution. Which continue to be connected to slavery during the Civil War.
The Civil War had the first suspension of habeas corpus which came early in the war by President Lincoln in 1861, when an approximately 20,000 Confederate supporters in Baltimore tried to block the movement of Union troops to Washington, D.C. Among the thousands arrested was a cavalry officer John Merryman that ended up petitioning for a written habeas corpus. That case was presided over by Chief Justice Roger B. Taney, the same judge who presided over the Dred Scott case. Taney would go onto order the military to bring the Officer to the counts, which they refused referring to President Lincoln’s suspension. Chief Justice Roger B. Taney ruled that Lincoln’s suspension was unconstitutional and such measures would require an act of Congress.
President Lincoln ignored the ruling and expands the territory throughout which habeas corpus was suspended.
This suspension was so vague as to allow local authorities to arbitrarily arrest any person they considered to be disloyal or whose politics they merely disliked. Some of the individuals that where detain had done nothing more than complain about Lincoln. It was estimated that ten to fifth teen thousand people were detain and denied a prompt trial. Ignoring the Habeas Corpus Act, which limited the time an individual could be held without trial, which removed one of the most contentious aspects of the …show more content…
imprisonments.
By July 1862 the seconded suspension was initiated during the civil war when Congress instituted America’s first national military draft and President Lincoln unsheathed his seconded suspension of Habeas Corpus, this act interned incited widespread uprising. By March 3, 1863, Congress passed the Habeas Corpus Act, legitimizing Lincoln’s former suspensions and approving any others he might make for the duration of the war. Limiting the time a person could be held without trial, again removing one of the most contentious aspects of the imprisonments. It was not until 1866; with the court case ex parte Milligan, that the impropriety of the imprisonments themselves was put on trial. But the issue was legalistic and not based on civil liberty. The Supreme Court ruled that applying military tribunals to civilians in areas where civilian courts still operated was unconstitutional.
After the Civil War a lot of issues where finally resolved the one that stands out, whether the right to petition for habeas corpus was purely federal or extended to the states. A reconstruction act established that those held in state prisons and jails had the right to petition for a habeas review in federal court; this meant the writ applied to everyone imprisoned in America.
More recently one of the significant developments in habeas corpus within the last decade: Boumediene v. Bush (2008). The significant development began with a writ of habeas corpus, submitted to the U.S. Supreme Court on behalf of the foreign citizen Lakhdar Boumediene, who was imprisoned in Guantanamo Bay American military prison camp.
President Bush in November 2001 commissioned the military to try prisoners taken in Afghanistan or Iraq as “enemy combatants.” By early 2002 President Bush created Camp X-Ray located in Guantanamo and declared that the prisoners had no rights under the Constitution of the United States since they were not being held on American soil.
This did not stop the detainees from filing habeas corpus submissions over the next three years. In landmark ruling, 2004 the Supreme Court heard the first of these cases Rasul v. Bush. The court’s found that the American legal system had authority to decide whether foreign “enemy combatants” were being wrongfully detained. The Defense Department documented Combatant Status Review Tribunals—nonpublic hearings that determined whether detainees met the conditions needed to satisfy the designation of “enemy combatant.” The tribunals came under a lot of criticism for not fulfilling the requirements. In October 2006 in order to gain control over the growing criticism of the Guantanamo detainees, Bush signed the U.S. Military Commissions Act (MCA). Congress stated they plan to allow trial by military commission for violations of the law of war and for other purposes. The MCA explicitly abolished habeas corpus rights for noncitizens. But in the case Boumediene v. Bush President of the United States (2008) challenged the MCA by appealing to a clause in the Constitution which stated the right to challenge “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.” Rutherford Institute (2013). June of 2008 The U.S. Supreme Court delivered a stunning defeat to the Bush administration in a ruling that gives detainees at Guantanamo Bay a right to challenge their detention in federal courts.
Supreme Court struck down the MCA as an unconstitutional denial of habeas corpus with a decision of 5 to 4, which also declared the jurisdiction of federal courts over such petitions from Guantanamo detainees who had been tried under the MCA.
Even though our president preforms several different duties as part of holding the highest office of the country the one duty that stands out the most, is Commander-in-Chief of the US Armed Forces. Found under Article II of the United States Constitution provides the role as Commander-in-Chief who can make rapid and effective decision with certain constraints without hesitation an example is sending American forces to trouble spots around the world as an instrument of foreign policy. However the president cannot declare war without congress’s backing.
Over the last 25 years, our American troops have fought in many troubled areas around the world such as Grenada, Panama, the Persian Gulf, Haiti, Bosnia, Afghanistan, and Iraq. The United States has had detainees from every war and troubled area. These detainees have the right to Habeas Corpus unless congress determines that it involves a rebellion or invasion that threatens public safety congress can suspended Habeas Corpus. Military usage of Habeas Corpus has caused a lot of cases to be brought before the United States Supreme Court. The Supreme Court protects civil liberties, including the judicial philosophy guiding the Court in this role of protection of the constitution and of democracy as we know it today.
The Supreme Court Judges, Justice O’Connor, Chief Justice Kennedy and Justice Breyer stated, “At this difficult time in our Nation’s history, we are called upon to consider the legality of the Government’s detention of a United States citizen on United States soil as an ‘enemy combatant’ and to address the process that is constitutionally owed to one who seeks to challenge his classification as such…. We hold that although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker” (2004). Habeas Corpus should be honored regardless of where they are detained or the danger the government feels these people might pose. No human should be unjustly denied the right to face your captures and the reason why they are being detained. Just because the government or the military thinks a person is a threat to us or a terrorist, they do not have a right to detain them indefinitely without proper representation is wrong with today’s technology which was used to begin with to detain an individual. I believe the government needs to do whatever it takes to protect the citizens of our country and when the evidence is there than treat them according to the law. If a person whom has representation is proven not guilty then return them to their home country.
References
FindLaw (2013), HAMDI et al. v. RUMSFELD, SECRETARY OF DEFENSE, et al.
Justice O 'Connor announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice Kennedy, and Justice Breyer join. (2004)
Retrieved from: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=03-6696
Duker W.F. (1982), A CONSTITUTIONAL HISTORY OF HABEAS CORPUS, Harvard Law Review.
Retrieved from: http://web.ebscohost.com.proxy-library.ashford.edu/ehost/pdfviewer/pdfviewer?sid=fb4bb7c1-0f1c-469a-857b-ebf5db47b867%40sessionmgr115&vid=9&hid=108
Habeas corpus (2011). Habeas corpus. Columbia Electronic Encyclopedia (6th ed.), 1.
Retrieved from: Academic Search Premier (EBSCOhost) database, in the Ashford Online Library.
Jordan,C. (2011) Habeas Corpus: From England to Empire, Renaissance Quarterly, Summer2011, Vol. 64 Issue 2, p665-666, 2p. (Book Review)
Retrieved from: http://web.ebscohost.com.proxy-library.ashford.edu/ehost/pdfviewer/pdfviewer?sid=fb4bb7c1-0f1c-469a-857b-ebf5db47b867%40sessionmgr115&vid=9&hid=108
Levin-Waldman, O. M. (2012). American Government. San Diego: Bridgepoint Education Inc. Retrieved from: https://content.ashford.edu/books/AUPOL201.12.1 McElroy W. (2012), Laissez Retrieved from: z Faire Club, The Great Writ Then and Now, Retrieved from: http://lfb.org/blog/the-great-writ-then-and-now/
Oyez. (2008). Boumediene v. Bush. IIT Chicago-Kent College of Law.
Retrieved from http://www.oyez.org/cases/2000-2009/2007/2007_06_1195
The Rutherford Institute(2013), Constitutional Corner, Habeas Corpus Retrieved from: https://www.rutherford.org/constitutional_corner/habeas_corpus/