Sample Essay on The Right of Habeas Corpus in the Context of the War on Terror

The Right of Habeas Corpus in the Context of the War on Terror

The paper discusses the right of habeas corpus in light of the war on terror. A number of issues will be addressed. Firstly, the paper examines the evolution of habeas corpus within the American and English traditions, including the meaning of the within the American constitution and its link to the protection of other civil liberties. Similarly, the paper provides concrete examples drawn from American history of instances where habeas corpus and their present applicability. We also examine the relevance of the writ to modern U.S. situations in the course of war on terror, particularly with regard to individuals characterized as illegal or enemy combatants. Finally, the paper ends by an examination of my personal values, philosophy or ideology on the balance between national security and civil liberties in the context of the continuous war on terror.

The origins of Habeas Corpus can be traced back to 15 June, 1215 when the Habeas Corpus was incorporated in the Magna Charta and compelled King John to end the illegal detention of free men. Habeas Corpus is derived from Latin meaning “that you have the body”. Habeas Corpus is used together with a writ. A writ refers to an order written by a judge or a judicial officer (Legal Information Institute, 2014). The major purpose of Habeas corpus writ is to ascertain if the individual held under incarceration is legally incarcerated. Various laws and regulations determine whether an individual is legally incarcerated or not. The 4th amendment of the American constitution protects U.S. citizens from arbitrary search and seizure. If a law enforcement officer stops individual X searches his pockets and finds marijuana, will that amount to a legal search and arrest. The Supreme Court examined this issue in 1968 in the case of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889. Terry was a seasoned law enforcement officer dressed in plain clothes, he noted three people behaving suspiciously (Pufong & Kluball, 2009). Given that law enforcement officers have a right to safety, whenever they stop an individual who is behaving and while conducting a pat down they feel something that may be a weapon, they can remove it and if the happens to be drugs, then the stop and seizure are both legal.

A different question to be considered is whether a police officer has the legal power to make the arrest. Police officers have to be empowered to have the power to arrest an individual, a place or a thing. For example, for many years, Sheriffs in the state of Pennsylvania lacked arrest authority; their role was to simply transport prisoners.

The passage of the Posse Comitatus Act of 1878 was intended to bring to an end the use of army in enforcing laws (Mackey, 2012). During this period, states were making use of army personnel as their agents to enforce laws and as a result, the army could not efficiently perform its other duties. The only laws that the military can enforce are the laws related to military property. This implies that the military can neither arrest nor apprehend outside military property. The property`s jurisdiction is also significant. Where the army has exclusive jurisdiction over a property, then law enforcement officers cannot enforce laws on that property. However, if both the army and the police have concurrent jurisdiction, then both can enforce laws on the property. However, proprietary jurisdiction is a preserve of the land owner, meaning that the military can never enforce any laws that the homeowner cannot legally enforce.

Throughout the American history, there have been several instances where suspension of Habeas Corpus happened. The suspension of Habeas Corpus first happened under President Lincoln in the course of the civil war. The President authorized his generals to arrest any individual whom they considered dangerous.  This in essence gave the generals room to abuse civil liberties because a general could simply arrest you if he disliked the way you look or if you had a personal disagreement with him. The arrested individual has little recourse even when his rights are abused. Although this may not have happened during the civil war, the temptation was evident.  Similarly, in 1863, the U.S. Congress for the second time suspended the habeas corpus to permit union army to continue holding prisoners. Furthermore, on 17th Oct., 2006 President Bush suspended habeas corpus. He did this to permit the United States to arrest and detain all terrorist suspects without following the due process and interrogating them without reading to them their Miranda rights. In addition, the Military Commission Act of 2006 became law in 2006. The law gave the U.S. the ability to detain any individual that was considered an enemy (Cutler, 2007). The suspension of habeas corpus was necessary to allow for the incarceration of all suspected enemy combatants.

The 11thSeptember attack on the U.S. forced the country to adopt an all new approach to the war on terror. The major danger is the invisible and unrecognizable enemy (Hunt & Hunt, 2001). Given that the U.S. is a mixture of all nationalities, many individuals, including U.S. born citizens are enticed to join jihadist groups with the sole intention of harming other Americans. Law enforcement officers have a daunting task of ensuring the safety of the country and its citizens. In my view, if an individual is declared to be an enemy combatant and poses significant danger to the U.S. and its citizens, they should be denied the right to self-incrimination.

The Supreme Court made a decision that all Guantánamo prisoners have a constitutional right to the writ of a habeas corpus and are entitled to challenge whether their incarceration is legal or not. For the majority, Justice Kennedy noted that the move by Legislative and Executive arms of government to suspend habeas corpus amounted to them behaving as if they were above the law. Justice Kennedy noted that even the King is a subject of law and that through the courts, the excesses of the executive can be checked. Justice Roberts was however one of the dissenting voices. He felt that the U.S. gave the foreigners under detention in Guantanamo the most worthwhile of all the rights non-American citizens can receive. Justice Scalia was equally more vocal on the issue noting that because the enemy combatants were not American citizens they could not be accorded the rights and privileges enjoyed only by U.S. citizens. He felt that there was risk that many more American citizens would die because of the majority decision (Center for Constitutional Rights, 2014).

As already noted, the events of September 11 permanently transformed life in the U.S. Through the Authorization for Use of Military Force against Terrorists (AUMF), the U.S. president now has the authority to use military force against terrorist groups as though he had sought permission from Congress (Tams, 2009). For example, if a group of terrorists cross the U.S. border from Mexico, they cause harm and return to Mexico, and Mexico refuses to hand them over, the U.S. can invade Mexico and apprehend these terrorists.

The court has stated that the AUMF does not grant the president the authority to deny terrorists their right of habeas corpus. It appears Congress attempted to take away the mandate of Federal courts to hear and determine habeas corpus writs, a decision that was overturned by the Supreme Court. However, it also worth noting that the U.S. Congress has the legal mandate to determine if there is need for any law enforcement agency or military to detain and interview suspects without following the due process. Therefore, acts of terrorism qualify to be some of the reasons where habeas corpus can be justifiably suspended (Spalding & Forte, 2014).

The Supreme Court`s role is principally to listen to cases of constitutional nature that are brought before it. The job of the court is to determine whether a given matter is legally before them and whether any civil liberties have been violated (Georgetown Law, 2014). Making these findings involves rigorous search and extensive debating among members of the Supreme Court bench. Whatever they decide has far reaching implications.

In my view, the American constitution ought to be applicable Americans. Therefore, it follows the right to remain silent and be entitled to an attorney if you cannot afford one as enshrined in the  Fifth Amendment should only be applied in protecting the rights of U.S. citizens and not alien terrorists. Therefore, I feel that the habeas corpus right ought to be suspended for all persons suspected of terrorism. One of the primary functions of the president as the Commander in Chief is to ensure the safety of the American people and their property from attacks by foreign entities. Striking a balance between the safety of U.S. citizens and protection of the accused persons from unreasonable search and seizure remains a tall order.


Center for Constitutional Rights. (2014). Legal Analysis: Boumediene v. Bush/Al Odah v. United States | Center for Constitutional Rights. Retrieved 4 November 2014, from

Cutler, L. (2007). Human Rights Guarantees, Constitutional Law, and The Military Commissions Act of 2006. Peace & Change, 33(1), 31-59. doi:10.1111/j.1468-0130.2007.00475.x

Georgetown Law. (2014). Supreme Court Research Guide. Retrieved 4 November 2014, from

Hunt, D., & Hunt, D. (2001). The Invisible Enemy. Memphis, TN: Grace Pub.

Legal Information Institute. (2014). Habeas corpus. Retrieved 3 November 2014, from

Mackey, T. (2012). A documentary history of the American Civil War era. Knoxville: University of Tennessee Press.

Pufong, M., & Kluball, C. (2009). Government and Individual Liberty: The Rehnquist Court’s Stop and Frisk Decisions. Politics & Policy, 37(6), 1235-1280. doi:10.1111/j.1747-1346.2009.00219.x.

Spalding, M., & Forte, D. (2014). The Heritage Guide to the Constitution. New York: Regnery Publishing.

Tams, C. (2009). The Use of Force against Terrorists. European Journal of International Law, 20(2), 359-397. doi:10.1093/ejil/chp031