Thursday, October 10, 2019

Habeas Corpus and the War on Terror Essay

The law of Habeas Corpus was created to permit the guilty to present their case in court and to be tried fairly. In today’s war on terror, the amount of such enemy combatants who were detained indefinitely without any trial has raised. The courts are split up on following the law by the letter or to practically change it according to the situation’s needs. I feel it’s necessary to follow these laws in the same context in which they were written, and the pragmatic approach leaves room for reckless changes. To deny an enemy combatant his or her day in court cannot be justified as taking the pragmatic approach in dealing with war criminals. This paper is an attempt to present the state of law today towards war criminals and the implications of denying the basic right of Habeas Corpus to suspected terrorists. Ever since the onset of civilization, arguments have routinely erupted between various members, families, factions, and groups within civilizations and between civilizations. In ancient times, arguments would be resolved by crude means, means not limited to the powerful person using brute force to show he was in the right. The stronger person would always have, say for example, the first right to food, to agricultural produce, cattle and to wealth etc. The weak wouldn’t dare pick an argument over the stronger person in fear for their life. But as civilizations grew and advanced over time, a code of ethics and laws began to form. Societies began to incorporate and adapt these laws in their daily functioning. Drawing inspiration from religion, past civilization practices and their mistakes, it was only natural that basic human rights were thought about and codified. The rights were guaranteed to all human beings, irrespective of who was physically stronger. The American Revolution has beyond doubt shaped the basic structure of human rights for the entire world to follow. Among many undeniable rights to citizens, the writ of Habeas Corpus was identified and established very early on in the Revolution. In Europe, the writ of Habeas Corpus was first traced to be used around the 12th and 13th centuries during the medieval period. Habeas Corpus translates from Latin to mean â€Å"you may have the body† or you may examine the body. It is essentially a writ that requires any person detained by law enforcers to be tried in a court of law and have his detention validated (Bbc. com, 2005). The writ doesn’t decide whether the accused is guilty or not, it merely stipulates that the accused be tried and detained if only found guilty of the crime being accused for. The US inherited this law from the English and codified it in the constitution in Article 1, section 9. The UN later incorporated it in their international human rights in 1952. The point of contention with the habeas corpus right is to whom it applies. The law stipulates that this right be never be suspended or denied except in cases of rebellion, invasion or when perceived as a threat to public safety. Surprisingly, this writ has been previously suspended twice in the past for seemingly similar reasons. President Lincoln suspended the writ in 1861 to prosecute the war prisoners captured during the American Civil war. His argument was that the confederates were a threat to the union and hence issued the order (Dueholm, 2008). This law was later restored after the war ended in 1866. President Bush in 2006 issued a similar suspension of the habeas corpus writ to detain enemy combatants captured in the global war against terror. It deemed these accused terrorists as a threat to national security and denied them the right to be presented and tried in court. This paper will focus on the consequences faced by the accused and the validity of enforcing such a suspension. Just suspending the writ wouldn’t seem very harmful when looked at by itself. But consider for a moment who the government arrests. American policy makers routinely count any military age males as enemy combatants. Drone strikes assume anyone in the vicinity of a drone strike of military age to be a enemy combatant first and then when sufficient intelligence is available to the contrary, they are posthumously declared civilians (Balko, 2012). In a likewise fashion, arrests were also made based on the very broad physical description of an age group, or depending on where they are and who they interact with, were picked up after being accused of terrorism. Next, consider the location of their detention. Accused terrorists were detained at prison, run by US military personnel backed by US administration; set up in a foreign land i. . Guantanamo Bay, Cuba. The single reason for maintaining such an institution away from US soil was to escape the jurisdiction of laws that govern detainees which would apply if held on US soil. Laws of detention stipulate not only the kind of treatment but also the punishment meted out to convicted terrorists. The captors were free to torture their captives in any way they saw fit to gather any amount of relevant information, regardless of whether the person accused is an actual terrorist holding any real information to share. Terms such as enhanced interrogation techniques had to be invented to pass them as legal and humane methods in congress. Add to this polarized scenario, the suspension of the one single law that could serve as the difference between life and death of an innocent civilian – the suspension of the writ of habeas corpus. The suspension took away with it the only chance an innocent civilian had to prove his innocence. In short, simply standing at the wrong place at the wrong time can get you to serve a lifetime of torture with not even a hint of a fair trial. Naturally, concern about the handling of such detainees grew and petitions filed by family and friends of detainees finally began to reach the courts. The Supreme Court finally in a landmark case of Boumediene v. Bush ruled against the suspension of habeas corpus for the detainees with a 5-4 majority. It declared that the suspension of the writ was indeed unconstitutional. Justice Kennedy who ruled with the majority supported his stand with examples from the history of the writ back in the 12th century and its recent applicability in territories outside the border of US but still falling in its control, such as Chanel Islands. His summary also compared the legality of this writ in Scotland, which is a sovereign nation and yet still under English laws. Once US jurisdiction was proved, Justice Scoter, Ginsburg and Bryer pointed out that it would have to be one that was based on the constitution or no jurisdiction at all. Justice Scalia argued that the habeas corpus law was in fact protected by the Detainee Treatment Act, and refuted the entire judicial intervention. He was supported by Chief Justice Roberts and Justices Alito and Thomas. The Justices did a fine job of evaluating the suspension of the writ. From establishing jurisdiction and what kind of jurisdiction, to an alternate mechanism to protect the habeas corpus in spirit, all avenues were thoroughly investigated. The courts also recognized the extremely difficult nature of assessing an individual in a warzone to be a combatant or a civilian in a foreign location. And yet, the writ cannot be suspended out of fear of failure in acquiring adequate proof against the detainee. Personally, I feel strongly that the writ of habeas corpus is a right so basic that it cannot be suspended in any scenario. The very least an accuser can do is to offer a fair trial to the accused. I feel that the President was wrong to remove the last ray of hope of an innocent civilian that might have been unfairly detained. The case also established the judicial soundness of our nation even at times of war, and the entire exercise in judiciary coming in between the functioning of Congress was an example to the world. Denying such a basic right makes us no different than the terrorists who accuse and punish others that broadly fit their own enemy description. Living as a part of a civilized nation for over 200 years, we owe it to ourselves to act in a dignified manner, even with our captives.

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