The terrorism act that took place in September 11, 2001, had a great impact on government policy implementation particularly with the detention and trial policies of suspected terrorists. The habeas corpus was in particular thrust into the limelight. This followed the authorization by Congress for the use of Military Force. This allowed the president to use any and all appropriate and necessary power against those who were responsible for planning authorizing, committing or aiding the terrorist attacks against the country. Consequently, the war on terror involved the detention of persons at Guantanamo who had been captured during the military operations of America within Afghanistan and in other countries. This was so as to prosecute them for their part in the war crimes. This paper seeks to examine how the writ of habeas corpus as well as the detention policies in America have evolved after 9/11 and how this affects the civil liberties of citizens and non-citizens while considering the requirements for national security issues arising from terrorism.
Habeas corpus, detention and trial policies in America after 9/11
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After the 9/11 attacks, the Guantanamo Bay Navy Base located in Cuba became synonymous with secrecy, torture and the abuse of executive power. Although this facility was created with the aim of controlling the country, it has only acted to weaken it, undermining the country's security as well as its values. However, Guantanamo is only part of a larger system of prisons such as Afghanistan's Bagram Air Base, secret CIA jails as well as the transfer of prisoners for torture in other countries. This system includes the detection of individuals who had been arrested within the country and who the president, George Bush claimed to be held in grounds of the war on terrorism that has no temporal or geographical bounds. The habeas corpus writ is aimed at protecting individuals from unlawful exercises of executive powers by the state. Habeas corpus has ensured that people seized as well as detained by the government has a right to question the grounds under which they are being detected since pre-revolutionary America. This writ is available to citizens, non-citizens, alleged spies, slaves and alleged enemies alike. This writ has been important to comprise the only common law remedy that is enshrined in Article 1, Section 9 of the constitution.
After 9/11, congress was however responsible for passing statutes that have limited the habeas rights for a certain class of prisoners. This was through the 2005 Detainees Treatment Act and the 2006 Military Commissions Act which acted to limit the jurisdiction of the federal court to heat petitions that are filled by foreign nationals that are detained as enemy combatants in the fight against terrorism. Moreover, these suspensions are permanent as they are to limited to an immediate emergency or time bound. The passing of these statutes was made amidst misinformation and confusion against habeas corpus. The picture painted is that the writ allows the enemies of America a free get out jail card to escape prosecution. This writ should however be portrayed for what it really is, a way for the hundreds of men who are held without any charge or indefinitely on grounds of the "war in terror" to ask for a meaningful hearing regarding just how legal their imprisonment is.
The Supreme Court majority recognized the need for authorizing the president to detain anyone who was capturing during the military operations in Afghanistan as a necessary incident of the Use of Military Force in the 2004 case Hamdi v. Rumsfield. Thereafter, the Department of Defense established the Combatant Status Review Tribunals which aimed at assessing whether those that had been detained in Guantanamo Bay under the banner "enemy combatants" could be detained during the entire period of "war on terror" and consequently be prosecuted in military commissions for the war crimes they had committed if any. This period in time also saw the Court decide in the Rasul v. Bush case. The decision held that the federal habeas statute under the constitution extended statutory habeas jurisdiction for prisoners under detention in Guantanamo. This decision saw numerous habeas petition filed on behalf of the detainees in the district courts where the judges had conflicting conclusion regarding whether the detainees had any rights that could be enforced to challenge their detention and treatment.
The detention policies by the government have sparked intense legal battles in recent years with habeas corpus being at the center of it. The use of this law has however, changed over time. In has become principally a prisoner's remedy in order to challenge convictions against them that are based on constitutional defects during the trial. After 9/11, this writ resumed its historical function as the remedy against the executive imprisonment without a chance of trial. The Supreme Court of the United States has on three occasions after 9/11 vindicated the importance of this writ. This was by upholding the rights of the detainees at Guantanamo to access the courts of America. This included two cases where Congress has attempted to strip this right from the detainees. In these rulings, the decision went against the claims of the president that he was in position of holding the detainees indefinitely or without legal protection simply by imprisoning them outside the country's jurisdiction. These two cases were the consolidated cases of Al Odah vs. United States and Boumediene v. Bush that were decided on June 12, 2008. A 5-4 decision by the Supreme Court held that the aliens who were detained at Guantanamo who were designated as enemy combatant had the constitutional right to habeas corpus. The court also indicated the Military Commissions Act limited the judicial review on the determination by the executive on the enemy combatant status of the petitioner also did not provide a habeas substitute that was adequate as such acted unconstitutionally by suspending the writ of habeas. The Boumediene decision has the immediate impact of enabling the Guantanamo detainees to petition any federal district court for a habeas review concerning their detention's circumstances.
These victories are however considered incomplete and limited. This is because although the Court rejected the notion that the country's constitution stops at America's shore and by effect extending the right to habeas corpus to detainees held at Guantanamo, it did not provide a guarantee for the judicial review of detainees that were being held in other detention facilities. The court was did not also grapple with other important components of the cases or other counter- terrorism decisions made since 9/11. For instance, it did not address what constitutes an "enemy combatant" other than a person that was captured in Afghanistan participating in hostilities on behalf of the Taliban against troops of the U.S or the allied forces. The court therefore did not address the notion by the president that the entire world comprised of the battlefield against terrorism and that any person arrested within a civilian setting within the country or anywhere in the world could be treated as a combatant and as such denied their right to be tried as a criminal.
Habeas corpus has proved to have limits inherit in its very nature. The writ is very resilient in securing the prisoner's court review at Guantanamo where the fact of detention of the prisoner by the United States is clear and undisputed. However, it becomes less effective where the country seeks to conceals its control and custody over the prisoners. This is usually done by holding the prisoners in secret or by enlisting the help of another country to hold the prisoner on their behalf. The writ has also demonstrated its limitations to obtain any judicial review over prisoner rendition to other countries fro continued detention and torture. Habeas corpus has also proved ineffective where the court had actually found the prisoner detention by the United States as being illegal but is not in a position of authority to order the prisoner release where the only option available was the release of the prisoner into American soil since these detainees were not in a position to return home safely or be repatriated to another country.
This is the first time that the executive has claimed its authority and power to deny basic rights to detainees on a permanent basis. What makes it even more illegitimate is that the executive is actually seeking to deny the habeas corpus rights to a singled-out population of people. These are the people that are unilaterally designated by the president as "enemy combatants". Further still, it is the first time in history that the executive has claimed the authority of eliminating habeas corpus without first determining that the safety of the public requires it to do so. President Bush was also noted as having interpreted the MCA and DTA statutes beyond the intentions of Congress. These policies were meant to prevent habeas petitions from only detainees in Guantanamo as well as in other places other than the United States. However, according to Bush, these provisions extended further. This had the potential of denying habeas corpus to illegal immigrants within the United States. This implies that an official of the United States acts within the law by picking anyone off the street in America and detaining him/her as an enemy combatant indefinitely with the detainee having no right to question or challenge this decision before a judge of the federal court.
This act has actually taken place with the detention of Ali Saleh Kahlah al-Mari, a 41 year old Qatari nation who had arrived in the county along with his family on a student visa. Al-Mari was initially detained on charges that were fraud-related but which were later dropped when weeks before the commencement of his trial he was declared an "enemy combatant" by the executive. This has seen Mr. al-Mari continue to be detained without charge and indefinitely in a South Carolina military prison. The military Commissions Act prevents the detainee from invoking habeas corpus to contest what is potentially a lifelong imprisonment. These detention policies in the fight against terrorism are seen to leave the individuals (both citizen and non-citizens) who happen to be detained by the executive without any legal tool that they can utilize to challenge their detention.
In previous cases where the writ of habeas corpus has been invoked, the court has extended it to detainees who are from foreign countries. In the In re Yamashita as well as Ex parte Quirin cases, habeas review was extended to review just how lawful the situations of detention really was even thought he petitioners claims were ultimately denied. The current claims fro legitimacy by administrators on the Guantanamo case rests in the decision made in Johnson v. Eistentrager, during World War II. Here German solders were arrested as well convicted in China and then imprisoned in Germany. The Supreme Court determined that these were admitted enemies of America and had also been tried as well as convicted by the military court. Current enemy combatants are in a very different situation. A majority of them have denied being enemies of America with very few of them being charged of any crime or being tried by a court of law. Most of them will never be charged. It is also well noting that the Eistentrager detainees were imprisoned in Germany while the Guantanamo detainees are in a territory where the United States government exercises exclusive and complete control and jurisdiction. The United States is the only sovereignty that can hear these cases or free them for any wrongful conviction.
Policy makers and public need to understand habeas corpus and recognizes its role as essentially preventing the executive abuse of power, preserve the values of Americans as well as give the fight against terrorism the legitimacy it requires in order to succeed. The global war against terrorism makes habeas corpus more important not less. This is being undermined by the detention policies in the form of the Detainee Treatment and Military Commissions Acts. As such, these policies are unconstitutional and should be repealed by Congress.