Civil Liberties, Habeas Corpus, and the War on Terror

Civil Liberties, Habeas Corpus, and the War on Terror

The principle of habeas corpus has a special status in the American constitution. It is commonly referred to as the “great writ of liberty”. The writ of habeas corpus is a legal relief that is used by prisoners who are detained by state court without the due process of the law. The privileges of the writ of habeas corpus are that, in case of unlawful arrest, imprisonment or detention, the victim can apply to a federal court to have the infringement reviewed. In the aftermath of the September 11 attack, when the American government declared war on terror, these privileges were suspended to those who were termed as the “enemy combatant”. The need for national security was used to justify the suspension where the terror suspects were imprisoned without the due process of the law in a U.S. naval base at Guantanamo Bay. The war on terror created a challenging situation in the history of civil liberties in which the need for national security superseded the protection of fundamental human rights.

Habeas corpus is a Latin word that simply translates to “produce the body. The application of this writ dates back to thirteen –century Anglo-Saxon common laws. As Shaw (2009) observes, the great writ was used by the English barons to check the powers of King John as early as 1215. In the words of the ancient writ, the king was forced to sign that “No free man shall be seized or imprisoned… except by the lawful judgment of equals or by the law of the land” (Shaw 2009). This can be argued to be the genesis of Article I, Section 9 of the American constitution which states that “The Privileges of the Writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it”.

In the United States, the writ of Habeas Corpus has been termed as the “Great writ of Liberty” for its privileges provides the strongest pillars of civil liberty. As Federman (2010:215) remarked, the writ of habeas corpus is to provide a habeas relief to state prisoners who have been denied the due process of the law. In the First Judiciary Act of 1789, the Congress granted the federal court powers to review all the cases of state prisoners who were illegally detained. From then henceforth, the writ acquired a wider meaning where state prisoners would challenge the legality of their imprisonment, arrest or detention in federal court. Where the federal court finds that the state court subverted the due process of the law, it has the supreme powers to release the prisoner or send the prisoner back to state court for a proper hearing ( Federman, 2010;216). After the civil war, the Supreme Court, as well as the federal courts, expanded the meaning of habeas relief to include any legal process, that no matter how it was deemed fair, it had an element of a violation of a constitutional right.

The recent suspension of habeas corpus under the war against terror is not the first of its kind. In the history of the U.S. civil liberties, the civil war and the World War II are notable periods when the right to a due process of the law was largely ignored. In the height of civil war period in particular, President Lincoln used the danger posed by the law to justify the suspension of the Writ of Habeas Corpus. The history of suspension of the fundamental constitution right set a precedent that the privileges of habeas corpus can be suspended during war times. As Lincoln argued, the suspension of habeas relief is sometimes a matter of necessity (Shaw, 2009). President Bush would later carry on with this precedent to justify his administration war on terror. The right to habeas corpus has come into sharp focus since the war on terror begun. The ongoing debate features the national security crusaders who are willing to violate the constitution to uphold public safety on one hand and the civil right activities who believe in the protection of civil liberty. The right to habeas relief in the current war on terror is so important since it holds the balance between the need for national security and the protection of human rights (Federman, 2007: 165).

The right to habeas corpus is the only remedy for the detainees at Guantanamo Bay and Bagram. But access to this right has been the subject of debate and judicial review. Initially, the United States government thought that by characterizing the prisoners as “enemy combatants” it effectively denied them the right to habeas corpus. The government also thought that by detaining the suspect outside the American territory, they were effectively locked out of the American Judicial System (Farell, 2010: 75). The assumption by the government was overruled in Rasul v Bush when the Supreme Court ruled that the prisoners, irrespective of their nationality, have the right to file for habeas relief in U.S. federal courts. The move (Military Commissions Act of 2006) by the congress to strip federal court powers to determine cases petitioned by enemy combatants was overruled by Boumediene v Bush. From a human right perspective, the right to habeas corpus is the only option that the “enemy combatants” can be guaranteed their right to a due process of the law.

The Boumediene v Bush case will remain to be a landmark and a point of reference in the history the right to habeas corpus and the war on terror. In the first place, unlike the other cases where the matter before the court was a review, the matter in this case was the legality of a law passed by the congress-Detainee treatment Act 2005 and the Military Commissions Act of 2006. The decision in this case was unique as much as it was controversial. On a 5-4 vote, the Supreme Court ruled that the action of the congress to deny Guantanamo detainees right to habeas corpus was unconstitutional since Guantanamo was under the de facto sovereignty of the U.S.

Writing for the majority, Justice Kennedy affirmed the traditional underlying principle of habeas corpus where the court acts as a check to the excesses of the executive. Referring to the ancient roots, the majority ruled that the king was subject to law and that the spirit of the constitution was to restrain unlawful actions as a “fundamental precept of liberty”. In addition, the majority concluded that decision by the military tribunal to classify prisoners as “enemy combatants” amounted to an unfair proceeding.

The dissenting opinion held that aliens had no right to habeas corpus. According to Chief Justice Roberts and Justice Scalia, the congress had done whatever it could to protect “whatever right the detainees may possess” (Elsea and Garcia, 2010:13). The dissenting justices argued that the decision by the Supreme Court would jeopardize the American national security. In summary, the controversial ruling featured the liberals who were bent to protect liberty and the conservatives who placed the need of security above the human right concern.

Protection of the writ of habeas corpus is a very delicate issue in the age of the war on terror (Clark, 2007:21). A middle ground has to be drawn as to where the line between the need for national security and the protection of human rights lie. The president as the Commander in Chief has an enormous responsibility to ensure that the American citizens are protected. To maintain this security, as it has happened before, it has sometimes been necessary to suspend the writ of habeas corpus. The constitution allows the executive to suspend the writ of habeas corpus if it is a matter of necessity to maintain public safety during a time of rebellion and invasion. However, unlike Lincoln who recognized the need to protect the writ of habeas corpus, the Bush administration unfortunately assumed that aliens detained away from American borders had no right to habeas relief.

According to the constitution, the president should only suspend the habeas relief when the nation is in great peril (Corn, 2008: 23). But it is important to note that the executive has no independent power to suspend the writ of habeas corpus. It is only the Congress which has the power to suspend the writ, either by authorizing the executive or by structuring the law. This brings the question why the Supreme Court has termed the restriction of the writ of habeas corpus to the detainees unconstitutional. In this aspect, the action of the Supreme Court was in line with its role as the ultimate protector of the civil liberty (Pfiffner, 2008: 96). In its interpretation, the Supreme Court has lived up to the spirit of the American constitution to guarantee freedom and checks the excesses of the political branch of the government.

Initially, after the September 11 attack, there was a need for a serious action on terrorism, but in the current period there is absolutely no need of denying the prisoners a due process of the law. The continued unlawful detention has an implication of the American image not only locally, but in the international scene. For a long time, the American society and the government at large has been characterized as one governed by the rule of law. This precept has to be extended to prisoners who are subject to U.S. sovereignty irrespective of their nationality or their locality. It is only through the writ of habeas corpus that those who are illegally detained can access a fair hearing.


Clark, J. (2007). Habeas Corpus: Its Importance, History, and Possible Current Threats. University of Tennessee Honors Thesis Projects. Retrieved on Feb. 11, 2013 from: http://trace.tennessee.edu/cgi/viewcontent.cgi?article=2057&context=utk_chanhonoproj Corn, G. (2008).

Symposium: A Discussion of Boumediene v. Bush: The Role of the Courts in the War on Terror: The Intersection of Hyperbole, Military Necessity, and Judicial Review. New England Law Review Vol. 43: 17-29

Dueholm, J. (2008). Lincoln’s Suspension of the Writ of habeas Corpus: An Historical and Constitutional Analysis. Retrieved on Feb. 11, 2013 from: http://quod.lib.umich.edu/j/jala/2629860.0029.205?rgn=main;view=fulltext

Elsea, J. & Garcia, M. (2010). Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court. Washington D.C.: Congressional Research Services.

Farell, B. R. (2010.) Habeas Corpus in Times of Emergency: A Historical and Comparative View. Pace International Law review Online Companion Vol. 1(9): 74-96

Federman, C. (2010). Habeas Corpus in the Age of Guantanamo. Belgrade Law Review No. 3:215-234

Federman, C. (2007) The Body and the State: Habeas Corpus and American Jurisprudence. New York: SUNY Press.

Hafetz, J. (2011). Habeas Corpus after 9/11: Confronting America’s New Global Detention System. New York: NYU Press.

Pfiffner, J. (2008). Power Play: The Bush Presidency and the Constitution. Washington, D.C.: Brooking Institution press.

Shaw J (Jan 23, 2009). The War and the Writ: Habeas Corpus and Security in an Age of Terrorism. Harvard Magazine. Retrieved on Feb. 9, 2013 from: http://harvardmagazine.com/2009/01/the-war-the-writ

Statutes and Cases

Boumediene v. Bush, 553 U.S. 723 (2008)

Detainee Treatment Act 2005

Military Commissions Act of 2006

Rasul v. Bush, 542 U.S. 466 (2004)

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