The Executive Branch and Limitations on the Suspension of Habeas Corpus Rebecca Smith Essay

Article I, Section 9 of the Constitution states, “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in the case of Rebellion or Invasion the public Safety may require it. ” The statement may seem fairly straight forward in that all citizens shall have the right to have their case heard by a judge unless they are considered war criminals or the possibility of the person being released would be a hazard to public safety.There are still many debates about this passage in the Constitution on what if any limitations can be presented to the exceptions. These debates became more heated and wide spread after a series of cases were brought before the Supreme Courts in regards to the Bush administration holding detainees termed as “enemy combatants” at Guantanamo Bay and with holding their rights to Habeas Corpus.

One such case that has been brought fourth and ruled upon is the case of Boumethene v.Bush which the Supreme Court ruled 5-4 that the detainees have the right to challenge the grounds of their detention. (Pond 2009) Although this ruling has seemingly been a step to defining some limitations on restricting Habeas Corpus, there is still much debate surrounding it on the terms of the war on terror which became a major campaign after the terrorist attacks on September 11, 2001.

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The major debates that seem be prevalent is what limitations should be placed on the suspension of Habeas Corpus in respects to enemy detainees.The Definition and History of Habeas Corpus The Writ Habeas Corpus, which is also known as the great writ of liberty, is the right to petition to be seen before a judge to determine the legality of the detainee’s imprisonment as it pertains to the U. S. judicial system. Put simply if someone is imprisoned, they have a right to plead their case before a judge that they have been wrongfully imprisoned by our laws. Many of the American Colonies had a similar form of Habeas Corpus written into their statutes prior to the Constitution so the concept was not completely oreign. The delegates at the Constitutional Convention discussed the need for a provision that assured the availability of Habeas Corpus to all citizens and after much debate, they settled on a provision which prohibited the suspension towards detainees held in federal prison. The assumed intent of the framers of the Constitution was to prevent Congress from suspending the writ of Habeas Corpus as was done by the British Parliament which allowed the colonist to be imprisoned without the legal ability to challenge the charges.

After the Civil war, The Congressional Committee on Reconstruction feared that Negros would be the target of many false imprisonments and be held in state prisons which would negate any powers the Federal courts would have to extend the Writ of Habeas Corpus. In order to prevent the southern states from abusing the judicial system by imprisoning the newly freed slaves they added a provision to the Reconstruction Act that allowed the Federal courts to grant habeas corpus to state prisoners.The years that followed the passing of the Reconstruction Act, the cases heard by the Supreme Court were limited to instances where the sentencing court lacked jurisdiction until 1915 in the case of Frank v.

Magnum where the Supreme Court ruled the detainee was being denied due process. (E. Chemerinsky, 1987) Although the suspension of habeas corpus is prohibited from being suspended, there are many instances in U. S. history where suspension during wartime. One famous instance was President Abraham Lincoln’s order to suspend habeas corpus.

Lincoln issued suspension despite the lower court’s ruling that he did not have the authority to call for such a suspension (the Court Of Appeals did not have authority to enforce its order to repeal the suspension). However in March of 1863, Congress passed a law that gave the president the authority to suspend habeas corpus “whenever in his judgment the public safety may require it”. (B, Farrell, 2010) The expansion of suspension of habeas corpus continued when after the attack on Pearl Harbor and America entered World War II.The citizens of the territory of Hawaii had the writ of habeas corpus suspended which was approved by the president and Congress. The act was constitutional in of itself however, once the conflict was over and the suspension had ended, there was the issue of those who were imprisoned during the suspension and if the restoration of habeas corpus applied to them as well which was not fully established. (B. Farrell, 2010) The Current War on TerrorSince September 11, 2001, the Bush administration has launched a major campaign for the war on terror which has included major changes to the where that fuzzy line is drawn between civil liberties and national security. Since 2002 several men that have been labeled as “enemy combatants” have been detained at a U.

S. naval base in Guantanamo Bay, Cuba known as GITMO. “The Bush administration believed that because the detainees were foreigners and on foreign soil, Constitutional rights would not extend to them.

” (D’Anza, J. 008) “The detainees were considered “unlawful enemy combatants,” not entitled to treatment as prisoners of war (because they did not satisfy such requirements of the Geneva Convention as wearing uniforms and carrying weapons openly) and therefore were subject to interrogation, but also subject to be held until the end of all hostilities. ”(Sherman 2009) The Bush administration validated the policy of revoking a detainee’s writ of habeas corpus as an effective use of powers given to the Executive branch through the Authorization for Use of Military Force Act.Congress passed the Military Commissions Act in 2006 which provisions that federal courts no longer have jurisdiction in cases of habeas corpus that pertain to enemy combatants. Despite the placement of the MCA, many of the detainees at Guantanamo have petitioned for the writ of habeas corpus but one in particular made a definitive statement toward Congress and the president on the limitations of suspending habeas corpus which is the case of Boumediene v.Bush.

Boumediene appealed to the Supreme Court after he was denied by the federal district court in D. C. and the Court of Appeals for D. C. alleging that the government was in violation of due process and common law. The government alleged that Boumediene along with five other men had links to al Qaeda after they were acquitted of allegedly being involved with a plot to bomb the U. S.

Embassy in Bosnia.The ultimate decision of the courts by a 5 to 4 margin was that habeas corpus did extend to the detainees of Guantanamo and that the attempt to suspend habeas corpus was a violation of the Suspension clause. Although the decision extended rights to these detainees while simultaneously stripping the Executive branch of what was thought to be an effective tool of the war against terror that was not the intended message of the courts. The message was to effectively “check” the Executive branch in the possibility of abusing its power towards enemy combatants during a time of war.The desired effect was to force the Legislative branch to review some of the laws put into place such as the Detainee Treatment Act (2005) which procedures spelled out how to designate an enemy combatant which the courts stated was not a sufficient substitute for the writ of habeas corpus.

Though the decision of the courts was a statement about the need for limitations and checks on the suspension of habeas corpus, the deeply divided 5-4 margin has left the debate somewhat more heated. John McCain stated that the court’s decision in the case Boumediene v.Bush was “one of the worst decision in the history of the country” whereas Barak Obama saw the decision as “a rejection of the Bush administration’s attempt to create a legal black hole at Guantanamo” and “ an important step toward re-establishing out credibility as a nation committed to the rule of law. ” (D’Anza, 2008) Conclusion As the debate grows more heated, it seems that the weighing problems of the nation, such as the economy, tend to move the war on terror to the back of the minds of the American people.Though the writ of habeas corpus is an important issue and needs to be addressed, it does not see to directly affect the American people so there is no call to define the limitations on the Suspension clause.

I feel that the decision made by the Supreme Court was justified as there does need to be some limitations placed on the powers of the Executive branch to suspend habeas corpus. The ability to suspend it is an effective tool and something I consider to be a “necessary evil” in fighting foreign country extremists that feel the need to destroy America.However our founding fathers created the government specifically with a system of checks and balances that prevented one branch from gaining enough power revoke the civil liberties of the citizens and the case of Boumediene v. Bush has brought light to how dangerously close were are to that realization. We are told that certain liberties have to be suspended during a time of war in order to effectively fight off those who attack us and our way of life. I believe most Americans are content or have come to terms with this reality however; there is a time, place and limitation of length of those limitations.

Chemerinsky, E. ( 1987) http://scholarship. law. duke. edu/cgi/viewcontent. cgi? article=1667&context=faculty_scholarship D’Anza, J. ,V.

(2008, Aug 25). Commentary: A look at the ‘boumediene v. bush’ decision. Daily Record, pp. n/a.

Retrieved from http://search. proquest. com/docview/345478611? accountid=32521 Farrell, B. (2010) http://digitalcommons. pace. edu/cgi/viewcontent. cgi? article=1011;context=pilronline Justice R. Kennedy (June 2008) http://supreme.

justia. com/cases/federal/us/553/06-1195/opinion. html Oyez. (2008). Boumediene v.

Bush. IIT Chicago-Kent College of Law.Retrieved from http://www. oyez. org/cases/2000-2009/2007/2007_06_1195 Pond, B. C.

(2009). Boumediene v. bush: Habeas corpus, exhaustion, and the special circumstances exception. Brigham Young University Law Review, 2009(6), 1907-1933. Retrieved from http://search.

proquest. com/docview/194363601? accountid=32521 Sherman, E. F. (2009). U. S.

supreme court rejects bush administration position on guantanamo detainees: The watershed of the boumediene v. bush line of cases. Rochester, Rochester: Retrieved from http://search. proquest.

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