Free «Habeas Corpus» Essay Sample

Habeas Corpus


In 2006, the bush administration signed a law that suspended the rights of Habeas Corpus to all persons that were considered to be combatant in the global war against terrorism. Since then, the law has been criticized by various main governmental organs as well as human rights movement for failing to make a distinction between a combatant and non-combatant of the war against terrorism (McDonough, 2008). This paper aims at providing the general meaning of the rights of Habeas Corpus as outlined in the U.S constitution, and its relationship with the protection of other liberties. The historical evolution and the relevance of Habeas corpus to the contemporary U.S circumstance will be highlighted. In addition, the Supreme Court interpretation of the right of Habeas as well as evaluation of various perspectives with regard government branches, media and academic will also be discussed in detail (McDonough, 2008).

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Right of Habeas Corpus in the U.S. Constitution

Habeas Corpus is a prehistoric common law legal procedure in which a person is considered to have undeniable rights. Habeas Corpus is an extraordinary remedy at law upon its application. In Habeas Corpus, the court is permitted and bound to issue a writ of Habeas Corpus to the authority restraining civil liberty (Duker, 1980). This law requires the restraining authority produce the reason and evidence of causal of detention. The law prevents the government from holding a person indefinitely without providing the cause. When a person files a Habeas corpus petition, the executive is usually bound by to explain to an impartial judge the justification of holding a person indefinitely (Duker, 1980). This law is enshrined in the US constitution. This prevents the government from detaining it is subjected in secret prisons thus it promotes civil liberties of American citizens. The constitution provides that privileges of the Writ of Habeas Corpus should not be suspended, unless there is a case of invasion of public safety. This law has been the pillar of western law since the signing of Magna Carta of 1215. The Habeas Corpus protects the civil liberties since it allows the prisoner to enjoy the constitutionally rights of fair treatment during a trial (Duker, 1980).

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Historical Evolution of Habeas Corpus

The origin of Habeas Corpus is quite vague, but it is dated back to the early 1215, when the King John of England was under pressure from the lords. The king issued the Great charter of English liberty referred to as Magna Carta, which was a law that the king was bound to obey. Habeas corpus was used to bring the convict to the trial (Halliday, 2010). However, it progressively became an essential right that protected individuals against arbitrary detention by the state. In 17th century during the political and religious turmoil, a lot of concern emerged in England about the widespread abuse of power, especially in royal and church tribunal. The secret agency of the state was accused of secretly abusing the enemies of the state (Halliday, 2010).

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The British colonialist to USA brought the habeas corpus along with them to America as a part of their privileges and rights under the English common law. During the decades of independence and revolution, refusal to grant a habeas corpus was a common grievance. This forced the both state and federal constitution to recognize the habeas corpus (Halliday, 2010). In 1789, the congress passed the Judiciary Act; the Act authorized all the federal courts in the US to g rant writs of habeas corpus in order to inquire to the cause of commitment. Consequently, the state parliaments also passed similar laws (Anon & Williams, 1977). Therefore, everyone under detention in both federal and state prisons could petition to the court to issue a writ (United States & United States, 1984).

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The habeas corpus law has been under test in different occasion in the history of US. During American civil war, concerns were raised the scope of individuals rights during a national emergency. In reaction to the crisis, President Lincoln suspended the law of habeas corpus on claims that the situation at that time was dangerous to the safety of the public (United States & United States, 1984). President Lincoln ordered the arrest and detention of suspected subversives, even without sufficient evidence to launch a charge. The habeas corpus was later reinstated and has been in action since then until a law suspending it application was passed during President Bush administration.

Relevance of Habeas Corpus to the Modern-day U.S.A

The Habeas corpus has been a center of controversy especially during the war against terrorism in United States of America. In 2006, President Bush signed into law the Military Commissions Act of 2006. This act suspended the writs of Habeas corpus. The act gave unlimited power to the military commissions to try an individual held in United States, and regarded to be unlawful enemy fighter in the global war against terrorism (McDonough, 2008). Furthermore, the act suspends the rights of unlawful combatant to have writs of habeas corpus. This means that no judge possess the jurisdiction of considering a writ habeas corpus application filed by or behalf of a person regarded to be an enemy combatant. In the war against terrorism, the suspension of habeas corpus has played a crucial role (McDonough, 2008). This is because it protects the courts from being misused by terrorist who are held as an enemy combatant in the wartime. Furthermore, the military commission only provides suspension of habeas corpus for aliens detained in USA. Therefore, the civil liberties of American citizens with regard to habeas corpus are still protected (McDonough, 2008).

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Relevance of Habeas Corpus to the Contemporary U.S. Situation during the War on Terror

During the war on terror habeas corpus was of much significance. It was essential to the situation because it had many things to do with the right of the offenders who were to be judged with crime and tried for the crimes done in a timely manner. Under the right of habeas corpus, the government has to justify its reasons for detaining people it assumes to be enemy combatants. In case convincing reasons are not given by the government, then such enemies have to released or prosecuted as quickly as possible (McDonough, 2008).

U.S. Supreme Court's Interpretation of the Right of Habeas Corpus

On June 12th 2008, the United States Supreme Court on a 5-4 judge bench ruled that enemy combatants detained in the United States territory are all eligible to the writ of habeas corpus as set in the article one; section nine of the United States constitution. This meant that these enemy combatants may not be detained indefinitely without receiving fair hearing under the civilian’s courts in the United States (Harrison, Gilbert & United States, 1991). According to the supreme judges, this right of Habeas Corpus relates even to non-United States citizens. This is as long as the enemy combatants are detained in a place that is entirely under the regulation of the United States. An exception to this right is only when a convincing reason is given so as to suspend this right (Harrison, Gilbert & United States, 1991).

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In Boumediene, Justice Kennedy indicated that habeas evaluation is less about prisoners’ rights that the judicial supremacy to check unwarranted use of executive authority. In declining to correct the appeals courts erroneous rulings, the justice fails to support fundamental values declared in the Boumediene and reduce their own authority (Harrison, Gilbert & United States, 1991).  

Among the dissenting judges were chief Justice john Roberts, justice Alito, Justice Scalia and Justice Thomas. Thomas said that President Bush government’s military hearing system actually offers habeas corpus protection. It did this by use of military tribunal rather than the American judicial system (Harrison, Gilbert & United States, 1991). Roberts said that Boumediene aggregates to an illegitimate proclamation of judicial power over the executive branch military decision, and places the fate of people reflected as enemy combatants in the hands of citizen judges who are not privy. Justices Scalia, Thomas and Alito said in their declaration that the court would regret its decision on the rights of enemy combatants as this would make more Americans get killed. Justice Scalia further said that the enemy combatants held in Guantanamo Bay which is not precisely a part of U.S made these detainees ineligible for habeas corpus. President George w bush in October 17, 2006 signed a law that suspended the right of habeas corpus to people who were branded by the U.S as enemy combatants. This lead to severe criticism as it was not apparent who has the ability to identify enemies to America (Harrison, Gilbert & United States, 1991).

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Habeas corpus has for many years formed the American judicial system from colonial times. It has been the only right that has been incorporated in the American constitution. This right is not supposed to be suspended at any particular time unless the government gives convincing reasons as to why it is depriving this right to any citizen or non-American citizen who is detained on American soil or territory (Young, 1997). However the presidential role as commander in chief of the armed forces in America raised a lot of controversies. This was after the 11th attack in America by terrorist. The then president Bush created a system of military hearings or courts that were aimed at dealing with people the administration considered as enemy combatants or terrorists (Young, 1997). Many people were left wondering whether the fact that the president is the commander of the armed forces makes it right to determine the fate of detainees considered as enemy combatants. However, upon closer scrutiny, it can be observed that such presidential powers are essential particularly when the country is under attack (Halliday, 2010).

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The role of congress in determining when habeas corpus can be deferred or suspended is not clearly outlined in the constitution. The constitution does not explicitly say who should suspend habeas corpus (Janssens, 2006). However, the congress can play a vital role in suspending a habeas corpus through the passage of acts. In 1996, the congress passed the antiterrorism and effective death penalty act. This act imposed a one year statute of restrictions on habeas petitions (Halliday, 2010). The act also directed that a petitioner could not file successive habeas corpus petitions. Through the passage of such acts, the congress plays a crucial role in suspending habeas corpus.

The role of Supreme Court in protecting civil liberties is the main role for its establishment (Harrison, Gilbert $ United States, 1991). The Supreme Court in the United States is the only institution that can overturn acts of the elected branches of government such as the executive, legislature or even the congress. The judicial philosophy that should guide the court in such an action must show some judicial conservativeness. There should be originalism and judicial liberalism. Another fundamental philosophy that should guide the Supreme Court is the philosophy of judicial moderate (Harrison, Gilbert $ United States, 1991).











In maintaining a balance between civil liberties and national security in the context of an unending war on terror; there needs to be a clear guideline on the role that the different stakeholders involved in managing such an occurrence. There must division of power, checks and balances established to ensure that no particular body of the government misinterpretations the constitution. There must be a philosophy of openness and consultation (Harrison, Gilbert $ United States, 1991).


Habeas corpus is a judicial command or order to a prison official requesting that an inmate who is detained in a particular country be presented to court so that determination can be made whether that a detainee is confined legally or lawfully (Janssens, 2006). Habeas corpus received a new turn after the 11th attack on America. The president Bush administration created a new tribunal system that was aiming to prosecute people captured and branded as enemy combatants. The after various petitions the supreme court on a 5-4 bench favor restored the habeas corpus.

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