Guantanamo Bay and Habeas Corpus Essay Example for Free

Guantanamo Bay and Habeas lead EssaySince September 11, 2001, Americans commit faced a new-fashioned foeman that is non distinguishable by conventional terms of the law of excite. As a go out of this fact, the detention of these competitor forces has brought about a large debate among, mostly, the Executive branch and the domineering royal court. At the center of the debate is the actorfuls of the enemy quellees. The Supreme Court argues that because their detention is at a location that is on a lower floor the complete chasteness of the United States, their rights atomic number 18 blanketed under(a) the good luck Clause of the genius and as such, they should be granted the right to seek Habeas Corpus. The Executives maintain that flagitious enemy combatants generate no rights under the Constitution of the United States and that the electric chair retains full control over their detention.This paper will run across at the English and American background of Habeas Corpus and how it plays into the landscape of war today. I will also briefly look at past reprieves of the writ, as well as the perspectives of the Executive, Legislative, and Judicial branches and how the writ applies to alien enemy combatants. I will also offer my own perspective on the same. Quite alone put, an unlawful enemy combatant caught fighting against the United States oversees and brought to a location that the U.S. does non retain sovereignty over, should non be afforded the same rights as the citizens and alien house physicians of our great nation that they fight against.The Great Writ of Habeas Corpus has its root in English Common Law dating back as early as the thirteenth century. The literal meaning in Latin is to have the body which quite basic ally obliged that the shtup bring the accused before a court (the Kings Bench) to determine if his detainment and confinement was lawful. In fact, the writ was meant to regulate jailors, resolve issues with jurisdiction and monitor the powers of the magistrates (Halliday, J.D., 2010). It was not a tool used to run down the prisoner, but a tool of governance.When the writ traversed the Atlantic Ocean and came to America, it was, and stock-still is, considered the most important apology ofpersonal liberty. Habeas Corpus is protected in the Constitution of the United States in Article 1, Section 9 wherein it states The favour of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or violation the public safe may engage it (Levin-Waldman, 2012). From its inception in the United States, Habeas has remained virtually unchanged. The Writ has only been suspended by the President and authorized by intercourse four times in Americas floor with the first instance when President Lincoln suspended it during the Civil warf ar in order to detain opposing forces who were attempting to pr purget troops trying to protect the Capital. Since then, it was used by G rant in the Ku Klux Klan Act, the tumult in 1902 and in 1941 after the attack on Pearl Harbor (Jackson, 2010).Even during these times the suspension was lifted erst the war or threat thereof was over (Langford, 2003) and those detained as a solvent were either released or tried and convicted. It wasnt until the horrific attacks of September 11, 2001 where terrorist agents used commercial airplanes as weapons of weed destruction to kill thousands of innocent noncombatants in spite of appearance the borders of the United States that the issue of the suspension of Habeas Corpus came to the forefront once again. After the attacks, Congress wrote the Authorization to Use Military Force (AUMF), which granted the President to use all necessary and appropriate forceagainst all nations, persons, operatives, etc. involved in the plotting and execution of the September eleventh attacks (Piret, 2008). It is well known that the Presidents first priority is that of commandant in Chief of t he arm Forces in times of state of war. After the horrific attacks in 2001, President Bush declared a War on Terror.This type of war has no precedence in history in which to go by it consists of unconventional fighters using unconventional methods of attacks unlike every seen under the law of war. As a resolvent of these circumstances, it was crucial for the President to initiate his wartime authority to detain belligerents fighting against the United States and her allies and detain them in a location in order to protect the nations security against future attacks. The President unilaterally labelled these detainees as unlawful enemy combatants- persons who did not wear uniforms of a nation or state, carry conventional weapons, or direct their assaults strictly on armed forces- which is the definition given to prisoners of war (POWs) (Acharya, 2012). ascribable to the vast allocation of the armed forcess as doctors and service members fighting in Iraq and Afghanistan, the Presid ent take a location to detain these combatants away from the battlefield, Guantanamo Bay or GITMO. GITMO is a military location in Cuba that the United States has had an open-ended lease for since 1903. According to the Bush administration, this location was ideal because the area was under Cuban sovereignty but under the complete control of the United States. This meant that the long arms of the law would not reach to GITMO and the President essentially had free reign as to the treatment and length of detention of these unlawful enemy combatants. With this status, the administration argued that they could hold a detainee for an undisclosed amount of time without trial because the War on Terror was essentially ongoing.Also, this status allotted that the detainees could not be tried in civilian courts or be granted the rights and protections afforded to POWs under the Geneva Convention (Piret, 2008). Because of these unique circumstances, the Courts became swamp with petitions for Habeas Corpus rights. The Executive branch argued that the courts could hear applications only within their respective jurisdictions and that Guantanamo did not fall within U.S. sovereignty, basically asserting that the judges had no authorization to hear cases from non-citizens that were held in a place where Cuba hold sovereignty. Because the nation was at war, the President retained full war time powers and could essentially be the judge, gore and jailer of the accused held at Guantanamo Bay (Healy, 2012). As a result, a few groundbreaking cases came in front of the Supreme Court.One of these cases was Rasul vs. Bush wherein the Supreme Court rejected the administrations rent that the President had the power to jail those accused of terrorist activities without access to lawyers and without access to any possibility of judicial round (www.oyez.org ). The decision held that the detention of the defendants did in fact hinder on the Fifth Amendment rights.After the impact of Ras ul and another(prenominal) case decided by the Supreme Court on the same day, Hamdi v. Rumsfeld, the executives were forced to create military tribunals called Combatant Status Review Tribunals (CSRTs), that afforded minimal protection to prisoners(Foley, 2007). However, these tribunals did not allow for the prisoner to obtain lawful counsel, did nothave juries, and could rely on hearsay and coerced confessions by innocents. Unfortunately, these tribunals were heavily weighted towards the government and even though the dish up did result in the release of a number of detainees, the majority of CSRTs have affirmed the detainees to be unlawful enemy combatants (Chesney, 2008 and Foley, 2007). The executive branch, despite these facts, argued that the CSRTs most closely resembled that of courts-martial that were afforded to members of the military, while still falling far short of Habeas rights.Amidst this rather heated debate amongst the Supreme Court and the Executive branch, Congr ess remained on the outskirts for the most part. Congress has never attempted to restrict or interfere with the Presidents authority to detain belligerents their main points were that the purpose of military detention was exclusively preventative and evidence of obligation is not necessary for the United States to detain a suspected terrorist. However, because of the Courts rulings, Congress did consecrate the Military Commissions Act of 2006. More or less, the MCA afforded the detainees the right to challenge the basis of their detention, the right to hear charges, and the right to testify, introduce evidence, and witnesses. Nevertheless, MCAs still allowed for coerced evidence to be produced. Additionally, the MCA empowered the Executives further and further delineated the courts from the review process afforded under Habeas Corpus.Coinciding with the MCA, Congress also intervened with the Detainee Treatment Act (DTA) that essentially provided a switching mechanism for Habeas f or judicial review where the Court of Appeals could determine if the CSRTs complied with regulations in place by the Defense discussion section and if those regulations were consistent with the Constitution and laws of the United States (Chesney, 2008).Despite the efforts of both the Executives and Congress to deplete the role of the Courts, the Supreme Court handed down a landmark 5-4 ruling in Boumediene v. Bush. Bouemediene brought up the issue of constitutional prefer of Habeas which it held could not be withdrawn without conforming to the Suspension Clause in the Constitution. In its ruling, the majority establish that the MCA deprived the Federal Courts to hear habeas claims,therefore unconstitutionally stripping their rights to the same (Piret, 2008). The Court held that even though the U.S. did not have sovereign control over GITMO, the complete control over the base do habeas rights a necessity.The majority also struck the DTA claiming that it fell short and did not pro vide a train of protection required to override suspension of habeas. Because of Boumediene, Congress cannot enact jurisdiction stripping commandment to disclaim executive detainees access to judicial review that it twice tried to do with MCA and DTA. Nevertheless, that the Court and the writ of Habeas Corpus is indispensable for monitoring separation of powers, and the test for determining the scope cannot be subjected to manipulation by those whose power it is designed to restrain (US Newswire, 2011).On the other side of the court, the dissenters thought that the majoritys decision treat the Constitutions structure and defied Congress in establishing procedures for appeals. They went further to say that the historical survey is ill-considered about alien prisoners outside of formal U.S. territory, and Justice Scalia says that the fact that even in the English cases, no alien was granted or rejected the right to the writ which was further proof that Habeas was not in favor (US Newswire, 2011). The dissenters furthered their point by stating that the Boumediene ruling is the most generous set of protections ever afforded to aliens detained as enemy combatants in any war, ever and that the decision was not about the detainees but about the Courts control of Federal policy (Acharya, 2012, Healy, 2012 and Piret, 2008).In light of all of the controversy surrounding Guantanamo Bay and whether the detainees have a constitutional right to it, one needs to look carefully again at the Suspension Clause 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. It is the last part of this clause that needs the most dialect when looking at it from the War on Terror perspective the public Safety may require it. Because terrorists are bred from many nations, do not have a uniform to be easily recognised by, and can walk within the boundaries of the United States virtuallyundetected , the law of war holds a different ground. Terrorists are by far and large profoundly hard to distinguish as there is no set guideline. unheeding of the fact that a belligerent fighter is a U.S. citizen or an alien combatant, they should all be reviewed in the same manner, as that of unlawful enemy combatants. Under that status, they should not be afforded the rights allotted to the citizens and resident aliens of the United States. Having said that, it should be the Presidents sole responsibility as Commander in Chief to detain these belligerents for as long as it takes to ensure the safety of Nation.On another level, the Supreme Court in its Boumediene ruling left out a few key factors to determine a proper procedure in the detention of the unlawful enemy combatants in areas other than Guantanamo Bay. It also did not clearly define whether its ruling affected trials currently scheduled to occur in CSRTs. The Court did not establish whether granting habeas rights to detainees at Gu antanamo would further put Americans lives at risk by bringing them into the very states that they fight against. Habeas is not about the proof of war crimes but about determining the status of those detained- whether they are POWs, Al Qaeda, or innocents (Yoo, 2012).Given that Congress waited almost five years to enact any type of legislation to determine this element is what has given America a bad reputation among the global community. If Congress had acted in a more expedient manner, those detained who ended up being innocent or POWs should have been locomote to another location and Guantanamo Bay would have truly been for unlawful enemy combatants.Furthermore, because Guantanamo Bay, even though under Cuban Sovereignty, is in all respects a U.S. military installation under the complete control of America, and therefore the Commander in Chief, any type of review should be conducted by military members and not civilian courts. The detainees, if allotted any amount of liberties u nder the Geneva Convention, should be maintained solely by the Armed Forces. There is nothing that states that the Supreme Court has the power to overhaul the Presidents Commander in Chief powers, thus the Supreme Court is wrong in its assertion that the detainees should be afforded habeas rights. The courts interpellation of thisfact seems to be simply to ensure them of their own federal powers than the rights of the detainees. They assert to retain their jurisdiction simply because Congress sought to relinquish those powers in the MCA and DTA.In closing, the writ of Habeas Corpus should not be afforded to detainees that have been established as unlawful enemy combatants. Aliens detained during combat with American forces in a foreign theatre, without uniforms or conventional weapons, who seek to harm or kill those other than armed forces are not to be determined as POWs or innocents and should be maintained at a location, Guantanamo Bay, which is outside of U.S. sovereignty. Whil e these combatants could be allowed a review as outlined in the MCA, their alien combatant status does not seduce the right to Habeas Corpus. With the Supreme Courts hole-ridden ruling in Boumediene, it should be expected that there are many questions which still need answers which are likely to come about in future habeas cases.Regardless of that fact, given that the War on Terror is not likely to come to a close any time soon, alien unlawful combatants should remain under the detention of the Commander in Chief, at whose judgment it is as to how to handle them, not the Supreme Court, whose main theatre is civil and criminal matters, not matters of war.ReferencesAcharya, U. (2012). external Lawlessness, International Politics and the Problem of Terrorism A Conundrum of International Law and US abroad insurance.International Politics and the Problem of Terrorism A Conundrum of International Law and US Foreign Policy (August 30, 2012). Denver journal of International Law and Polic y, 40(1), 2011-2012. Chesney, R. M. (2008). 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