Habeas Corpus has been around for very many years.
Although no one knows its exact origin it still dates back pretty far. Habeas Corpus has been seen as a good thing and a bad thing. It has been around for every war we have had. It has also been suspended by two of our presidents in the past.
The story and history of Habeas Corpus is a very old one but it is also a very interesting one too. In this essay, I will examine the history of Habeas Corpus, the civil liberties and freedoms that are at issue and the war on terrorism currently being waged around the globe today.I will attempt to show how these three issues are entwined, and how our personal freedom is at stake, more than we realize. A writ of habeas corpus is a legal action that requires a person under arrest to be brought before a judge or into court.
The principle of habeas corpus ensures that a prisoner can be released from unlawful detention—that is, detention lacking sufficient cause or evidence. The remedy can be sought by the prisoner or by another person coming to the prisoner's aid.Also known as the "great writ", it is a summons with the force of a court order; it is addressed to the custodian (a prison official for example) and demands that a prisoner be taken before the court, and that the custodian present proof of authority, allowing the court to determine whether the custodian has lawful authority to detain the prisoner. If the custodian is acting beyond his authority, then the prisoner must be released. Any prisoner, or another person acting on his or her behalf, may petition the court, or a judge, for a writ of habeas corpus.Habeas Corpus was originally the order of the King and his courts but in the years passed became the right of the person being detained or someone acting on their behalf rather than the king and his courts.
There is a quote from Magna Carta that states, ‘’no free man shall be taken or imprisoned or disseized or exiled or in any other way destroyed except by the lawful judgment of their peers or by the law of the land’’. Habeas Corpus was unknown to many civil law systems in Europe.European civil law system generally favored authority from the top down whereas Angelo-Saxon common law tends to favor the individual. The Angelo-Saxon common law comes from England. In 2002 Lakhdar Boumediene and five other Algerian natives were seized by Bosnian police when U.
S. intelligence officers suspected their involvement in a plot to attack the U. S. embassy there. The U. S.
government classified the men as enemy combatants in the war on terror and detained them at the Guantanamo Bay Naval Base, which is located on land that the U. S. leases from Cuba.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. The District Court judge granted the government's motion to have all of the claims dismissed on the ground that Boumediene, as an alien detained at an overseas military base, had no right to a habeas petition. The U.
S. Court of Appeals for the D. C. Circuit affirmed the dismissal but the Supreme Court reversed in Rasul v. Bush, which held that the habeas statute extends to non-citizen detainees at Guantanamo (Oyez, 2008).
In 2006, Congress passed the Military Commissions Act of 2006 (MCA). The Act eliminates federal courts' jurisdiction to hear habeas applications from detainees who have been designated as enemy combatants. When the case was appealed to the D. C. Circuit for the second time, the detainees argued that the MCA did not apply to their petitions, and that if it did, it was unconstitutional under the Suspension Clause. The Suspension Clause reads: "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.
The biggest question I have in regards to all this is are the detainees at Guantanamo Bay entitled to the protection of the Fifth Amendment right not to be deprived of liberty without due process of law and of the Geneva Conventions? Habeas corpus has certain limitations. It is technically only a procedural remedy; it is a guarantee against any detention that is forbidden by law, but it does not necessarily protect other rights, such as the entitlement to a fair trial. So if an imposition such as internment without trial is permitted by the law, then habeas corpus may not be a useful remedy.In some countries, the process has been temporarily or permanently suspended, in all of a government's jurisdictions or only some, because of what might be construed by some government institutions as a series of events of such relevance to the government as to warrant a suspension; in more recent times, such events may have been frequently referred to as "national emergencies.
" The right to petition for a writ of habeas corpus has nonetheless long been celebrated as the most efficient safeguard of the liberty of the subject.The jurist Albert Ven Dicey wrote that the British Habeas Corpus Acts "declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty" (Wright, 2007). The writ of habeas corpus is one of what are called the "extraordinary", "common law", or "prerogative writs", which were historically issued by the English courts in the name of the monarch to control inferior courts and public authorities within the kingdom.The due process for such petitions is not simply civil or criminal, because they incorporate the presumption of non-authority. The official who is the respondent has the burden to prove his authority to do or not do something.
Failing this, the court must decide for the petitioner, who may be any person, not just an interested party. This differs from a motion in a civil process in which the movant must have standing, and bears the burden of proof. At issue with the imprisonment of alleged combatants are the very basic rights call civil liberties or civil rights.Civil liberties are civil rights and freedoms that provide an individual specific rights. Though the scope of the term differs amongst various countries, some examples of civil liberties include the freedom from slavery and forced labor, freedom from torture and death, the right to liberty and security, freedom of conscience, religion, expression, press, assembly and association, speech, the right to privacy, the right to equal treatment and due process and the right to a fair trial, as well as the right to life.
Other civil liberties may also include the right to own property, the right to defend oneself, and the right to bodily integrity. Within the distinctions between civil liberties and other types of liberty, there are distinctions between positive liberty/positive rights and negative liberty / negative rights. The United States Constitution, especially its Bill of Rights, protects civil liberties. The passage of the Fourteenth Amendment further protected civil liberties by introducing the Privileges or Immunities Clause, Due Process Clause, and Equal Protection Clause.Human rights within the United States are often called civil rights, , which are those rights, privileges and immunities held by all people, in distinction to political rights, which are the rights that inhere to those who are entitled to participate in elections, as candidates or voters.
Before universal suffrage, this distinction was important, since many people were ineligible to vote but still were considered to have the fundamental freedoms derived from the rights to life, liberty and the pursuit of happiness.This distinction is less important now that Americans enjoy near universal, suffrage, and civil liberties are now taken to include the political rights to vote and participate in elections. Because Indian tribal governments retain sovereignty over tribal members, the U. S.
Congress in 1968 enacted a law that essentially applies most of the protections of the Bill of Rights to tribal members, to be enforced mainly by tribal courts. T. H. Marshall notes that civil rights were among the first to be recognized and codified, followed later by political rights and still later by social rights.In many countries, they are constitutional rights and are included in a bill of rights or similar document. They are also defined in international human rights instruments, such as the 1948 Universal Declaration of Human Rights and the 1967 International Covenant on Civil and Political Rights.
Civil and political rights need not be codified to be protected, although most democracies worldwide do have formal written guarantees of civil and political rights. Civil rights are considered to be natural rights.Thomas Jefferson wrote in his ‘A Summary View of the Rights of British America’ that "a free people [claim] their rights as derived from the laws of nature, and not as the gift of their chief magistrate. " The question of to whom civil and political rights apply is a subject of controversy. In many countries, citizens have greater protections against infringement of rights than non-citizens; at the same time, civil and political rights are generally considered to be universal rights that apply to all persons. Custom also plays a role.
Implied or unenumerated rights are rights that courts may find to exist even though not expressly guaranteed by written law or custom; one example is the right to privacy in the United States, and the Ninth Amendment explicitly shows that there are other rights that are also protected. The United States Declaration of Independence says that people have unalienable rights including "Life, Liberty, and the pursuit of Happiness". It is considered by some that the sole purpose of government is the protection of life, liberty and property. The right to self-defense is used as a defense of the 2nd Amendment right to bear arms.Civil rights guarantee equal protection under the law. When civil and political rights are not guaranteed to all as part of equal protection of laws, or when such guarantees exist on paper but are not respected in practice, opposition, legal action and even social unrest may ensue.
Some historians suggest that New Orleans was the cradle of the civil rights movement in the United States, due to the earliest efforts of Creoles to integrate the military en masse. W. C. C. Claiborne, appointed by Thomas Jefferson to be governor of the Territory of Orleans, formally accepted delivery of the French colony on December 20, 1803.
Free men of color had been members of the militia for decades under both Spanish and French control of the colony of Louisiana. They volunteered their services and pledged their loyalty to Claiborne and to their newly adopted country. But in early 1804, the new U. S. administration in New Orleans, under Governor Claiborne, was faced with a dilemma previously unknown in the United States, i. e.
, the integration of the military by incorporating entire units of previously established "colored" militia.The February 20, 1804 letter to Claiborne from Secretary of War Henry Dearborn that "it would be prudent not to increase the Corps, but to diminish, if it could be done without giving offense. " Civil Rights movements in the United States gathered steam by 1848 with such documents as the Declaration of Sentiment. Consciously modeled after the Declaration of Independence, the Declaration of Rights and Sentiments became the founding document of the American women's movement, and it was adopted at the Seneca Falls Convention, July 19 and 20, 1848.
The civil rights movement was a worldwide political movement for equality before the law occurring between approximately 1950 and 1980. The movement had a legal and constitutional aspect, and resulting in much law-making at both national and international levels. It also had an activist side, particularly in situations where violations of rights were widespread. Most civil rights movements relied on the technique of civil resistance, using nonviolent methods of struggle, to achieve their aims.In some countries, struggles for civil rights were accompanied, or followed, by civil unrest and even armed rebellion.
While civil rights movements over the last 60 years have resulted in an extension of civil and political rights, the process was long and tenuous in many countries, and many of these movements did not achieve or fully achieve their objectives. The War on Terror (also known as the Global War on Terrorism) is a term commonly applied to an international military campaign which started as a result of the September 11, 2001 terrorist attacks on the United States.This resulted in an international military campaign to eliminate al-Qaeda and other militant organizations. The United Kingdom and many other NATO and non-NATO nations participate in the conflict. The phrase 'War on Terror' was first used by President George W. Bush on 20 September 2001.
The Bush administration and the Western media have since used the term to signify a global military, political, lawful, and conceptual struggle—targeting both organizations designated as terrorist and regimes accused of supporting them.It was typically used with a particular focus on militant Islamists, al-Qaeda, and other jihadi groups. Although the term is not officially used by the administration of U. S. President Barack Obama (which instead uses the term Overseas Contingency Operation), it is still commonly used by politicians, in the media and by some aspects of government officially, such as the United States’ Global War on Terrorism Service Medal.Because the actions involved in the "war on terrorism" are diffuse, and the criteria for inclusion are unclear, political theorist Richard Jackson has argued that "the 'war on terrorism' therefore, is simultaneously a set of actual practices—wars, covert operations, agencies, and institutions—and an accompanying series of assumptions, beliefs, justifications, and narratives—it is an entire language or discourse.
" Jackson cites among many examples a statement by John Ashcroft that "the attacks of September 11 drew a bright line of demarcation between the civil and the savage".Administration officials also described "terrorists" as hateful, treacherous, barbarous, mad, twisted, perverted, without faith, parasitical, inhuman, and, most commonly, evil. Americans, in contrast, were described as brave, loving, generous, strong, resourceful, heroic, and respectful of human rights. Both the term and the policies it denotes have been a source of ongoing controversy, as critics argue it has been used to justify unilateral preventive war, human rights abuses and other violations of international law.
