Habeas Corpus and the War on Terror

Habeas Corpus and the War on Terror

Introduction

Habeas Corpus is a legal action or writ whose literal translation is “May you have the body”. It is the right of a prisoner to be presented to a court of law so that the reason of his arrest can be known. However, in the current situation of the war on terror, the applicability of this law on terrorists has frequently been debated.

The paper will begin with the history of Habeas Corpus in the context of English and American traditions. Following this, examples of suspension of Habeas Corpus from the history of the United States history shall be discussed. The paper will then move forward to the analysis of Habeas Corpus in the current situation. This will include a discussion on the decision of the Supreme Court's decision in the Boumediene v. Bush case along with perspectives on this issue by noteworthy individuals. The paper will conclude with the views of the author in the light of National Security and Civil liberty issues of the war on terror.

Discussion

History of Habeas Corpus

Though the word Habeas Corpus was first used in 1305, writs similar to it were passed even before the signing of the Magna Carta in 1215. The purpose of this writ was to allow a prisoner to be given the chance of hearing by a court of law. Initially, it was only the prerogative of the king to call for a Habeas Corpus. However, a law of 1640 extended this right to the individual concerned or a third party who acted on his behalf, as well. It was finally codified by the Habeas Corpus Act of 1679. These writs were issued in the name of the monarch by courts and required from the addressed authority the bringing of the prisoner before the court.

The writ was applied also in colonial America. According to the colonists, it was one of the “dearest birthrights of Britons:" and was used on a frequent basis. The denial of this basic right by Judge Dudley in 1659 on a particular occasion caused a huge controversy. After the independence of the thirteen colonies resulting in the United States of America, the U.S adopted the tradition of Habeas Corpus from Britain. However, as opposed to the latter, the writ in the United States was issued in the name of the people rather than the monarch.

The right to exercise this writ is specifically mentioned in the Suspension clause of the U.S constitution. The Constitution allows for this right “unless when in cases of rebellion or invasion the public safety may require it”. The constitution grants this right to suspend the Habeas to the Legislative branch of the government. However, in U.S history this right has been suspended by the president who is a part of the Executive branch. The implementation of this writ is directly related to the protection of other civil liberties. In countries other than the US, suspension of Habeas Corpus has often resulted in the ...