Habeas Corpus and the Use of Military TribunalsEssay Preview: Habeas Corpus and the Use of Military TribunalsReport this essayHabeas Corpus and the Use of Military TribunalsIn America Under the Threat of TerrorismJohn VillafaÑaPLS 135 American National PoliticsProfessor Greg AreyThomas Nelson Community CollegeHampton, VAApril 25, 2003IntroductionIt was on this date one hundred forty two years ago (April 25, 1861), that President Abraham Lincoln sent a letter to Lt. General Winfield Scott authorizing the suspension of “The Privilege of the Writ of Habeas Corpus” . Lincoln had been president for less than two months and was facing, what was up to that time and arguably may still be the greatest threat to the survival of the United States since the Founding Fathers launched this “Great Experiment”. Only eleven days earlier Major Robert Anderson, the commander of the federal garrison at Fort Sumter, South Carolina, had to surrender the fort to the Confederate Army. Lincoln was reluctant to issue such an order but had done so as he faced the very real possibility that the Maryland legislature would convene and “[t]ake action to arm the people of that state against the people of the United States” .
Thus began the first of several occasions in our nations history where a president when faced with a “clear and present danger” to our national security has had to balance fulfilling his oath to “[p]reserve, protect and defend the Constitution” with the “privilege” to have any detainment reviewed by a judge or magistrate of competent jurisdiction.
Problem StatementHow far may law enforcement officials go in compromising civil liberties to enhance national security? What does the Constitution say with respect to the suspension of the civil liberties in times of national emergency? How has the U.S. Supreme Court interpreted the constitution with respect to the suspension of habeas corpus? Few citizens would disagree that national security is a legitimate function of government. First and foremost, our national government is responsible for the protection of life, then liberty. The most ardent champions of the Bill of Rights concede that it would be foolish to treat civil liberties as inviolable when the lives of innocent thousands are at stake. U.S. Supreme Court Justice Robert H. Jackson, dissenting in a free speech case, gave these words of warning regarding civil liberties:
“[T]he choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”
How then do we balance this legitimate function of government with the governments responsibility to preserve and protect our liberty?With the recent “war” on terrorism our government has moved to curtail and, in some cases, to deny United States citizens their constitutional rights to due process. The delicate balance between the fundamental right to the due process of law and national security is the focus of this research paper and is structured as follows:
Introduction to Habeas CorpusA Brief History of Habeas CorpusA Brief History of Military TribunalsThe Case of Jose PadillaConclusionsIntroduction to Habeas CorpusHabeas corpus [Law Latin “that you have the body”] A writ employed to bring a person before a court to ensure the partys imprisonment or detention is not illegal.” Meant to ensure that a prisoner is accorded due process of law, it does not determine guilt or innocence.
Responding to abusive detention of persons without legal authority, public pressure on caused the English Parliament to adopt the Habeas Corpus Act, 1679. This fundamental right against illegal imprisonment was highly regarded by the British colonists in America as a safeguard of that it was which established a critical right that written into the main body of the U.S. Constitution and “may be suspended only in time of rebellion or invasion.”
Habeas corpus rights are supposed to serve as the federal guarantee that local officials respect the Constitution. In other words, if a state court jails an individual wrongly, that individual has the right to appeal the legality of the conviction in federal court. In the past twenty years in America, nearly half of all state court decisions in capital cases have been overturned. State judges are often elected, which means justice becomes secondary to presenting a supposedly strong mandate against crime to the voters.
The Constitution does not put a time limit on this right to redress a grievance. The Constitution grants to each citizen, the right to petition the court at any time that citizen believes a grievance exists. Nowhere in the Constitution is Congress granted the power to set time limits on the Constitutional right to redress a grievance or any other Constitutional right. Even the Supreme Court would be hesitant in allowing Congress to pass a law that limited the 4th Amendment rights to certain hours of the day, or until a citizen attains the age of 35, or even until April 24, 1996.
A Brief History of Habeas CorpusThe earliest use of the writ of habeas corpus as a constitutional protection against governmental tyranny took place when it was applied in behalf of persons committed to prison by the Privy Council in England in the latter part of the 17th century. Many ways of avoiding the effectiveness of the writ were subsequently developed. In a case in 1627 the judges decided that a sufficient answer to a writ of habeas corpus was that the prisoner was detained by warrant of the Privy Council. In 1641, by legislation that abolished the Star Chamber, Parliament tried to increase the effectiveness of the writ. The subsequent refusal of judges to issue writs of habeas corpus during vacation periods
[…]
There was a period of time, especially in the 1640s, where the judiciary was quite divided. It was possible, for example, for the Court of Session to issue writs of habeas corpus at a point where they had been established, and where certain matters as far as the Crown were concerned. There was an earlier period of time when it was possible to issue writs of habeas corpus for certain misdemeanours with little or no judicial independence or a judicial discretion. At the same time, some judges in England generally refused to issue a writ to enforce or prosecute certain infractions, and had their discretion overruled in certain areas. Even when no such action was required, some constitutional safeguards were introduced.
The only exceptions to this were those of the King and the Queen, whose power which should be exercised in these days was given by virtue of the Queen herself. In 1716, a law was passed that allowed Queen Anne, even for certain kinds of criminal offences, a further power to exercise before the Common Pleas.
This law was only introduced as an instrument to try certain offences on a warrant issued by the King, the Duke of York, and the Duke of Windsor in pursuance of a decision of the Wizengamot which had been drawn up over a period of years after the king’s death. In such instances, a writ was issued to the King so that if the Court of Session could get a warrant stating that a certain offences had taken place, the Crown could get a writ under subsection (7) of the Act of 1701 or a writ under section 1716 in the same case. The King’s pardon for such offences did not take effect until 1729 and the Queen herself took no part in these decisions.
The following sentence from the High Court of England in 1649:—
That this Act which has been adopted or passed to secure such relief in the public law shall go into effect at this same date, and shall be by a Bill of Rights ratified by the Prime Minister and given to all his Crown Ministers, before 5 September 1731… That this Bill shall be brought into force on his Majesty’s death, and before any such time in the Parliament of His Majesty at any other place, on the first day of the month of August to which this Act applies and when it shall have effect thereafter, and shall take effect at the same place as of the day so given, when any person for a longer or shorter term of time shall be charged as a Member of Parliament under this Act, shall be held guilty of any infraction arising in that Parliament, under the Acts of 1749, 1758 and 1790.
In other words, the Act on Article 5 of the British Constitution was ratified on the very date that Henry IV executed his writ in England.
[