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Civil Liberties, Habeas Corpus, and the War on Terror

Soon after the U.S. invasion of Afghanistan in 2001, the Bushadministration developed a plan for holding and interrogatingcaptured prisoners. They were sent to a prison inside a U.S. navalbase at Guantanamo Bay, on land leased from the government of Cuba.Since 2002, over 700 men have been detained at “GITMO.” Most havebeen released without charges or turned over to other governments.In 2011, Congress specifically prohibited the expenditure of fundsto transfer GITMO prisoners to detention facilities in thecontinental United States, making it virtually impossible to trythem in civilian courts. As of April 2012, 169 remained indetention at GITMO (Sutton, 2012).   

An assumption made by the Bush administration in selecting thislocation was that it was beyond the jurisdiction of U.S. courts.The administration wanted to avoid any judicial oversight of how ithandled detainees, characterized as “enemy combatants.” A possiblelegal challenge to indefinite detention with no formal charges orjudicial proceedings might arise from the habeas corpus provisionof the Constitution.

Article I, Section 9 of the Constitution states, “The Privilege ofthe Writ of Habeas Corpus shall not be suspended, unless when inCases of Rebellion or Invasion the public Safety may require it.”Under this provision, persons detained by the government areentitled to a judicial hearing to determine if there is any legalbasis for their detention. Some legal commentators refer to theright of habeas corpus as the “great writ of liberty” because it isa prisoner’s ultimate recourse to an impartial judge who can reviewthe possibility that he is being held illegally by the executive(e.g., the police or the military). In nations that do not honorhabeas corpus, people simply disappear into prisons without everhaving their day in court.

Several controversial Supreme Court cases have come out of GITMO.One fundamental question that has been debated, but not clearlyresolved, is to what extent the war on terror justifies thePresident’s indefinite detention of “enemy combatants” without thepossibility of the minimal judicial review protected by habeascorpus? Another issue in the debate is to what extent Congress mustclearly authorize the President to conduct extra-judicialdetentions in order for them to be legal? In 2008, the SupremeCourt’s decision in Boumediene v. Bush offered someanswers to these questions. However, the deeply divided 5-4 Courtand the likelihood of the protracted nature of the war on terrorsuggest that debate around these important questions will continue.Writing the Final Paper in this course will prepare you toparticipate intelligently as a citizen in this ongoing debate.

Write an essay about the right of habeas corpus in the context ofthe war on terror. Your essay should address the followingsubtopics:

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