for liberty and justice for all|
Unless you’re an enemy combatant
“For liberty and justice for all” is that a true statement? In a time of war can we provide a fair and equal trial to all of those who have tried to harm us or is it even feasible to lock them all away and let the government figure out what to do with them? As a veteran of the US Navy I fought and assisted those that ultimately died for this country and I will still support and defend the constitution of the United States through all wars foreign and domestic for the rest of my life. One of the rights that the constitution provides for us is the right of each American citizen the right of Habeas Corpus. This right in translation simply means that “you have the body” but literally translates to the right of each and every person that has been arrested to be seen in a court of law and judged whether or not the individual is being rightfully detained or imprisoned. The privilege of habeas corpus is not a right against unlawful arrest, but it is a right to be released from detention after an arrest. If someone believes the arrest is without legal merit and suddenly refuses to come willingly, he still may be guilty of resisting arrest, which can sometimes be a crime in and of itself (even if the initial arrest itself was illegal) depending on the state. Habeas Corpus is also not a substitute to a trial and it doesn’t prove a person’s innocence or guilt. It doesn’t even provide for other civil rights like a speedy trial. It is simply designed to quantify the reason that someone was arrested and to justify their detention. Habeas corpus is there to help stop prisoners from becoming “lost” in the system and being continually detained without justification. So why would a sitting President wants to take these rights away and can a president even do that? First we need to further understand the history of Habeas Corpus.
Habeas Corpus is really a shared sentiment and a universal right across many countries to include Ireland, Germany, and Australia; just to name a few. The multi country “right” was to be signed into law at the United Nations. However, in the 1950’s an American lawyer named, Luis Kutner, began advocating an international writ of habeas corpus to protect individual human rights. In 1952, he filed a petition for on behalf of William N. Oatis, an American journalist jailed the previous year by the Communist government of Czechoslovakia. Alleging that Czechoslovakia had violated Oatis's rights under the U.N. Charter and the Universal Declaration of Human Rights and that the U.N’s General Assembly had "inherent power" to fashion remedies for human rights violations, the petition was filed with the U.N’s Commission on Human Rights. Then the Commission forwarded the petition to Czechoslovakia, but no other United Nations action was ever taken. So the right was never further developed at the U.N. level (Jackson, 2006). However, is still recognized in over 14 countries including Ireland, Australia, Germany, and Canada to name a few.
In the United States however the law has developed and changed over time. One of those changes allow for the suspension of Habeas Corpus in times of war. The Suspension Clause (Clause 2), located in Article One, Section 9. This states that "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."(Jackson, 2006) This clause will allow a president, to temporarily suspend habeas corpus. This clause has been enacted only four times in our U.S. history.
President Lincoln in 1861 was the first to exercise his authority to suspend habeas corpus while fighting the civil war. He suspended the right and then started arresting and detaining secessionist without the need for a trial. The next president to suspend habeas corpus was Ulysses S. Grant in 1871.
Then again, 144 years later, in Oct. of 2006, President Bush signed a law suspending the right of habeas corpus to persons that are “determined by the United States" to be an "enemy combatant" in the Global War on Terror. President Bush's action drew severe criticism, mainly for the law's failure to specifically designate who in the United States will determine who is and who is not an "enemy combatant."(Peters and Wooley, 2011) This was the first time that the authority to suspend habeas corpus would be fought and resisted by so many in congress. Jonathan Turley, a professor of constitutional law at George Washington University stated, "What, really, a time of shame this is for the American system. What the Congress did and what the president signed today essentially revokes over 200 years of American principles and values." The lack of habeas corpus poses new and troublesome questions for the government and the American people. Questions like: Who now bears the burden of proof? Must the government show that it is properly holding the detainee? Or is it up to the detainee to show that he is being held improperly (Brust, 2012)? The lack of habeas corpus in Guantanamo is still an issue today. The problem is that the courts won’t transport the detainees to an in state facility and if the detainee is released he will probably return to the al-Qaida. The government will now have to decide if the potential harm from habeas corpus litigation is sufficiently offset by incapacitating a detainee. Even after a decade of detainment in Guantanamo the Supreme Court still refuses to review the facts and details of their incarcerations. The opposite side of the argument is equally as compelling. Should we allow military operations to be disrupted by a long list of discovery requests? Should we reignite the enemy troops with legal causes of action that will consume significant time and manpower to defend, and further provide them a public platform so that they can denounce the United States?"(Brust, 2012) We should also think about the implications if we were to review ever Person captured in World War II there would have been hundreds of thousands of POWs. Where would we have been able to do a habeas review for all of them? If that were the case, then in the future the military will simply keep detainees where it captures them. The military would prefer the risk of prison breaks and enemy attacks to the certain cost and disruption to intelligence gathering that are inevitably caused by repeatedly being dragged into court.
Habeas Corpus is a right of the American people and it is another successful policy that the constitution upholds for us. The decision to suspend that policy in a time of war is never an easy decision although if the suspension of an American policy is used to save the life of an American soldier or help to protect our freedom then I am in support of that suspension. However, the lack of Habeas Corpus in a foreign country will only breed hate and discontent for the Americans and our way of life. We must work harder to find a better solution that will not only give the detainees a fair and equal habeas corpus but also a fair trial. However, sometimes the values that we hold true cant apply in a time of war. The United States Marines make it know that in a gun fight with the enemy that you should always “shoot to kill” and now I know why. The discovery, the trial, and the sentencing added with the public backlash would be a true nightmare for the rest of us.
http://usgovinfo.about.com/od/rightsandfreedoms/a/habeuscorpus.html Vicki C. Jackson, "World Habeas Corpus," 91 Cornell Law Review 303, 309-314 (January 2006) (2012, 11). Habeas Corpus. comptable-gatineau.com. Retrieved 11, 2012, from http://comptable-gatineau.com/essays/Habeas-Corpus-1234722.html Ulysses S. Grant: "Proclamation 204 - Suspending the Writ of Habeas Corpus in the County of Union, South Carolina," November 10, 1871. Gerhard Peters and John T. Woolley, 2011, The American Presidency Project. http://www.presidency.ucsb.edu Brust, R. (2012). Detention Dilemma. ABA Journal, 98(10), 40-43