WAR ON TERROR

Civil Liberties, Habeas Corpus, and the War on Terror

Civil Liberties, Habeas Corpus, and the War on Terror

Introduction

Imprisonment has played a vital part in the war against terrorism. Emergency legislation was adopted in both the UK and the USA in the instant consequences of the attacks on 9/11. The legislation expanded powers of surveillance and permitted detention without trial of non-citizens. Hasty augmentations of the US prison estate began around the same time and, by early 2002, regular flights transported detainees to sites in Iraq, Afghanistan and Cuba which now resonate familiarly around the world: Abu Ghraib, Bagram, Guantánamo Bay. The war against terrorism has widely been criticized due to the nature of suspects' detention which often termed as “habeas corpus”. (Sidhu, 2008)

The word belongs to Latin language and means “you have the body”." Habeas corpus is a writ or legal device designed to permit a person incarcerated to challenge his or her detention. Habeas corpus cannot be sought by a person who is not under confinement. The origin of habeas corpus is traceable to the common law. This paper discusses the war on terror in relation with civil liberties and habeas corpus.

Discussion

Since its onset, the 'war on terror' has been propelled by a militaristic agenda that has sought to minimize external legal or political interference with a security-driven process. The tactics employed to this end include the physical exclusion of human rights monitors from penal sites, procedural exclusion of judicial oversight and attempted jurisdictional relocation of judicial responsibilities to military organs. An illustrative example is the energy invested in redefining war-on-terror detainees as something other than prisoners of war: a chore that required, inter alia, the construction of a complex military-legal architecture and the promotion of a nomenclature ('enemy combatant') of disputed legal meaning and significance. Such exclusionary tactics have been underpinned by practices designed to obscure the role of the state through the use of proxy actors (such as privately hired security companies) and processes of 'juridical othering'. (Mullard, 2008)

Congress enacted significant changes to federal habeas laws in 1996, through its endorsement of the Effective Death Penalty Act (AEDP Act) and Anti-terrorism. The AEDP Act supports accelerated check of habeas petitions and reduces the capacity of recheck of the values of habeas petitions. The authority of federal courts to grant habeas relief is expressly set out by statute. In addition to such authority, the statute also imposes limitations on the exercise of that authority. The material that follows sets out federal habeas laws and amendments made thereto by the AEDP Act. (Leagle.com, 2010)

Habeas corpus may be used to challenge pre-trial or postconviction confinement. The greatest use of habeas comes at the post-conviction confinement stage. Except for the issue of post-conviction bail, all jurisdictions generally limit post-conviction use of habeas corpus until after direct review or appeal of the judgment imposing confinement. The requirement of exhausting direct review before resorting to habeas relief launched the legal term "collateral attack" of judgment as the manner in ...