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Habeas Corpus and the Use of Military Tribunals

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Habeas Corpus and the Use of Military Tribunals

In America Under the Threat of Terrorism


John Villafaсa


PLS 135 American National Politics

Professor Greg Arey

Thomas Nelson Community College

Hampton, VA

April 25, 2003


It 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 nation's 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 Statement

How 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 government's 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 Corpus

* A Brief History of Habeas Corpus

* A Brief History of Military Tribunals

* The Case of Jose Padilla

* Conclusions

Introduction to Habeas Corpus

Habeas corpus [Law Latin "that you have the body"] A writ employed to bring a person before a court to ensure the party's 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 Corpus

The 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



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