Habeas Corpus And The War On Terror
Elizabeth Watts
November 11, 2014
POL201 : American National Government
Instructor Megan Ellinger

Habeas Corpus, Latin for “you have the body”, is used to bring a prisoner before the court to determine if the person's imprisonment is lawful. What happens when the President decides it is time to suspend habeas corpus? During the War on Terror President Bush passes legislation banning prisoners of war from utilizing the writ that has been around since the time the Magna Carta in England was written. In doing this, many cases developed in which those prisoners petitioned the Acts that were passed, and many opinions and questions about liberty in the United States and the US Constitution arose.

Habeas corpus first appeared in the Magna Carta of 1215, and is the oldest human right in the history of English-speaking civilization. From 1215 to the Bush Administration, the argument for a strong executive has been the same; in times of crisis and emergency, it is the President’s responsibility to preserve and protect the homeland, even if that means curtailing personal freedom in the process. “Ultimately, after 500 years of development, habeas corpus evolved into a robust check on the Crown’s power to arbitrarily detain. It was deemed so critical to liberty that it alone among the great writs was incorporated into the U.S. Constitution, arguably becoming the most important original human rights provision prior to the introduction of the Bill of Rights.” (Shackelford, 2009). In 1996, Congress narrowed the writ of habeas corpus through the passage of the Antiterrorism and Effective Death Penalty Act, and after September 11th, 2001, it became harder for prisoners of Guantanamo Bay to have access to habeas corpus. The Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 further narrowed the scope of habeas relief, providing that prisoners held in Guantanamo Bay may not access the federal courts through habeas corpus; instead, they must go through the military commissions and then seek appeal in the D.C. Circuit Court. Habeas corpus is protected by the US Constitution, which provides limits on the power of Congress that “the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” The Sixth Amendment rights of accused persons provide the framework for habeas corpus petitions.

The Bush Administration suspended habeas corpus with the passing of the Military Commissions Act in October 2006. President Bush signed a law suspending the right of habeas corpus to persons determined by the United States to be an enemy combatant in the Global War on Terror. The law states “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”. The bill grants the President of the United States almost unlimited power to establish and conduct the military to try persons considered to be enemy combatants. The problem with this was it did not specifically designate who in the United States would determine who is and who is not an enemy combatant.

There were a few cases in which President Bush and the Military Commissions Act was petitioned. In the case of Rasul v. Bush, the Court faced petitions for habeas brought on behalf of two Australians and twelve Kuwaitis who were captured abroad and held without charges amidst hostilities between the United States and the Taliban. Petitioners filed suits under federal law challenging the legality of their detention, alleging that they had never been combatants against the United States or engaged in terrorist acts, and that they have never been charged with wrongdoing, permitted to consult a