The Powers of Government vs. Human Rights: The Suspension of Habeas Corpus
If there is a single principle or ideology that defines what it means to be American that principle would be liberty: liberty to our own beliefs or to speak freely, and liberty to act according to our own conscience so long as we do not infringe upon the liberties of others. These liberties are however meaningless without the right to be free from arbitrary, and wrongful detainment.
The founders understood that liberty was dependent on freedom from arbitrary bodily restraint, and in framing our Constitution ensured that the writ of habeas corpus, the right to contest illegal restraint or detainment before an impartial judge, could not be suspended except when the public safety requires it in times of invasion or rebellion. Again, further protection was extended when the constitution was amended to include, “Nor [shall any person] be deprived of life, liberty, or property, without due process of law”.
However, despite these laws and ideals the right to habeas corpus and due process of law has been significantly curtailed since the commencement of the so called “War on Terror”.
On September 11th, 2001, terrorists high-jacked American passenger planes and executed attacks in three different areas of the country infringing on the human rights of thousands of Americans. (Amnesty International USA) Two months later on November 13th 2001 the Constitutional rights of every American citizen were violated when President Bush passed Military Order Number 1 or Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism. (Amnesty International USA) This act is a blatant denial of habeas corpus and essentially allows the United States government to arrest, capture and or hide anyone in the world purely by claiming they are a threat to the United States.
Then on December 28th 2001 the US Justice Department realized they would have to allow the rights of habeas corpus review to any suspect they detained on American soil. (Amnesty International USA) Realizing this, the Justice Department advised the Pentagon that holding foreign detainees in the non-sovereign territory of Guantánamo Bay should prevent habeas corpus review by US courts. It warns of “potential legal exposure” if a US court was ever able to exercise habeas jurisdiction over the detainees. So in other words the government realized that they would have to allow constitutional rights to detainees if they held them on US soil, thus Guantánamo Bay provided the loop hole they needed. Then on January 10th 2002 the loop hole came to fruition and the first detainees were transferred to Guantánamo and litigation began soon after. (Amnesty International USA)
One of the better known cases is Rasul v. Bush. This case began when Shafiq Rasul of Great Britan filed a petition for writ of habeas corpus on February 19th, 2002 as he was being held as an enemy combatant in Guantánamo Bay Prison. (Amnesty International USA) Then on July 31st 2002 the District Court for District of Columbia (DC) ruled in Rasul v. Bush that it has no jurisdiction to hear habeas corpus appeals from Guantánamo detainees on grounds that it did not have jurisdiction because Guantanamo Bay is not a sovereign territory of the United States. (Amnesty International USA) The ruling was appealed, but on March 11th 2003 the district court ruling was upheld. (Amnesty International USA) The case was appealed to the Supreme Court on September 2nd, 2003 and heard a few months later. (Amnesty International USA) On March 9th , 2004, two years after he was detained Shafiq Rasul was released to the United Kingdom with no charges filed. (Amnesty International USA)
Less than a year later the Detainee Treatment Act (DTA) was signed into law on December 30th 2005. (Amnesty International USA) This law contained habeas-stripping provisions in relation to Guantánamo and providing for limited judicial review of CSRT decisions by the DC Court of Appeals. About six months later the US Supreme Court issues its ruling on the case of Hamdan v. Rumsfeld. It holds that the DTA did not strip federal courts of jurisdiction over habeas corpus petitions pending when the DTA was enacted.
On October 17th 2006 the Military Commissions Act (MCA) was signed into law stripping the US courts of jurisdiction to consider habeas corpus petitions from foreign nationals held as “enemy combatants,” and limiting judicial review to that enacted under the DTA of 2005. (Amnesty International USA) This Act essentially says that the US courts have no jurisdiction to consider habeas corpus petitions from Guantánamo detainees.
Then on September 19th 2007 the Habeas Restoration Act was presented to the Senate. This legislation was intended to repeal habeas-stripping provisions of the MCA, but failed in the Senate after Senators vote 56-43 to break a Republican filibuster, four short of the 60 needed to cut off debate and bring the legislation to a final vote. (Amnesty International USA)
On December 5th 2007 the US Supreme Court heard oral arguments from the detainees on a consolidated Guantanamo Bay detention camp. (Amnesty International USA) Then on June 12, 2008, the Supreme Court ruled in the Boumediene v. Bush case, the court recognized habeas corpus rights for the Guantanamo prisoners. (Amnesty International USA) Finally on October 7, 2008, the first Guantanamo prisoners were ordered released by a court considering a habeas corpus petition. (Amnesty International USA)
At the very onset of the detention program established by the November 13th 2001 Presidential Military Order the rights of the detainees were significantly restricted. Not only were people captured and detained on hearsay evidence, but the order placed them solely under the jurisdiction of the Executive Branch; not allowing access to a court justice or attorney, as stated in the order:
Military tribunals shall have exclusive jurisdiction with respect to offenses by the individual; and the individual shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual’s behalf, in any court of the United States (Military Order of November 13, 2001).
This is significant because the detained were being held as enemy combatants rather than prisoners of war. During war time a prisoner of war is an enemy soldier who was captured in the battle field and is held as a prisoner for the duration of the war to prevent the solder from returning to the ranks of the opposing nation. These enemy combatants however were not soldiers, and many of them were not captured in combat zones, or were even citizens of nations that the United States is currently at war in; as found in the Boumediene v. Bush Supreme Court case:
Some of these individuals were apprehended on the battlefield in Afghanistan, others in places as far away from there as Bosnia and Gambia. All are foreign nationals, but none is a citizen of a nation now at war with the United States. Each denies he is a member of the al Qaeda terrorist network that carried out the September 11 attacks or of the Taliban regime that provided sanctuary for al Qaeda (Boumediene v. Bush).
Some may feel that the imprisonment of enemy combatants is justifiable for the protection of our national security. The War on Terror however is a war with an indefinite goal, aside from the continued protection from terrorist activity, and therefore may be viewed as endless. Because the war may be seen as endless simply holding a suspected enemy combatant without the ability to contest their confinement before an impartial judge requires us to also view their detention as endless or indefinite. However a certain respect for the basic rights of human beings demands that we must afford the right to those being detained by the United States to contest their status as enemy combatants.
The function of habeas corpus is meant to be seen as “the appropriate process for checking illegal imprisonment by public officials” (Boumediene v. Bush). Yet in an attempt to legalize the president’s indefinite detainment of enemy combatants Congress suspended habeas rights for people determined to be enemy combatants by the government with the, Military Commissions Act of 2006 which reads:
No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination (Military Commissions Act 2006).
This legislation bared any judicial action on behalf of detainees accused of being enemy combatants, and instead gave the Executive branch of the government unilateral control over the detention of anyone deemed to be enemy combatants; bypassing the separation of powers inherent in the Constitution. One of the significant problems with it was not only did it allow for the military to detain foreign nationals as enemy combatants, it also left the question of what would happen if a United States citizen was captured and labeled as an enemy combatant. While only aliens or non-citizens were to be held as enemy combatants, how could citizenship be proven except in a court? Yet being deemed an enemy combatant the citizen could not be granted a writ of habeas corpus to contest their imprisonment in a court.
This detention is of course only possible because Congress suspended habeas rights for enemy combatants, but is this suspension constitutional? As stated before the constitution does allow for the privilege to be suspended, but only “when in cases of rebellion or invasion the public safety may require it”. These limited conditions however have not been met, and the government has no justification for the suspension of the writ. The Bush administration claimed that because enemy combatants were being held in Guantanamo Bay, Cuba, territory outside of United States sovereignty that the constitution could not apply to detainees held there. While Cuba dose maintain sovereignty of the territory, the United States holds full military and civil control of the base that the prisoners are detained at, nor is it ever within the power of the government to act outside of the bounds of the Constitution, or to quote the Supreme Court, “To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say ‘what the law is’” (Boumediene v. Bush).
The actions of the government taken to facilitate the indefinite detention of prisoners have raised many moral and ethical questions, and the suspension of habeas corpus calls into question our nation’s commitment to human rights, and shakes our values of liberty and justice to their core. These sobering questions should have however been answered before they even arose, for the founders also understood these questions and framed a constitutional legal system whose safeguards were disregarded by both the Executive and Congress. Fortunately the safeguards have been reestablished through the actions of our judicial system, and the rule of Constitutional law has restored an essential liberty.
