Privilege Of The Writ Of Habeas Corpus example essay topic

Habeas Corpus and the Use of Military Tribunals In America Under the Threat of TerrorismByJohn Villa fa~naForPLS 135 American National Politics Professor Greg AreyThomas Nelson Community College Hampton, VA April 25, 2003 Introduction 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: o Introduction to Habeas Corpuso A Brief History of Habeas Corpuso 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 resulted in the passage by Parliament of the Habeas Corpus Act of 1679. That statute imposed severe penalties on any judge or officer who wither refused without good cause to issue the writ or to comply with it. The statute, however, dealt only with imprisonment for criminal offenses, and it was not until 1816 that its benefits were extended to persons detained for other reasons.

No student of American history can doubt that Abraham Lincoln cherished the union of the United States. When he swore in his presidential oath to 'take care that the laws be faithfully executed' he vowed to make the American experiment in democracy succeed. In Lincoln's view, the experiment could only succeed through the preservation of the Union without secession; he resolved to restore the rebellious states to the Union and all else would fall to this goal. The pressure of the Civil War altered American values, elevating majority rule and equality at the expense of individual liberty and the rule of law.

The country underwent a profound cultural and legal shift with consequences for contemporary America. Lincoln was an undeniably enthusiastic defender of law, liberty and the Constitution, but he clearly was taking unprecedented liberties with each of the three when he suspended individual liberties, shut down newspapers that carried messages that were anti-war and anti-administration, and jailed well-known political dissidents. However, the most long-term and far-reaching move he made was when he suspended habeas corpus, creating more power for himself than any other individual in America before or since. Chief Justice Roger Taney rebuked Lincoln stating that the President has no constitutional authority to suspended habeas corpus. "Taney reasoned that the Suspension Clause was placed in Article I, which deals with the powers of Congress, it must have been intended that only Congress should have the power to suspend the privilege of the writ". Lincoln made no direct response to Taney's rebuke, but defended his suspension of habeas corpus in a speech to a special session of Congress on July 4, 1861.

He clearly stated that his presidential oath required him to faithfully execute the laws of the United States, and he asked the assembled members of Congress, 'are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?' While his argument had its basis in simple practicality, it had virtually no legal merit. Lincoln advanced the legal argument, 'It was not believed that any law was violated. ' The Constitution, he argued, does not expressly prohibit the president from suspending the writ, and it is unreasonable that a danger should run its course until Congress can be assembled. In 1863 Congress explicitly empowered Lincoln to suspend the privilege of the writ during the war. In more recent years, courts in several states suspended the privilege when state executives declared martial law during strikes. A Brief History of Military Tribunals In March 2002, the Bush administration released its rules for military tribunals.

Defendants will be presumed innocent, subject to proof beyond reasonable doubt; they need not testify; they can hire civilian attorneys or get free military counsel. There will be no double jeopardy. Capital cases will require a unanimous verdict. All verdicts can be appealed to a three-officer panel.

Trials will be open, except for safety or to protect classified information. The establishment and use of military tribunals to try civilians is not new in America. Again, during the Civil War, President Lincoln authorized the use of military tribunals to try persons who acted or spoke against the United States in its efforts to quash to rebellion of the eleven southern states. The Supreme Court found unconstitutional Lincoln's order authorizing trial by a military tribunal of Lambkin P. Milligan, an Indiana lawyer accused of stirring up support for the Confederacy. The Court ruled that civilians must be tried in civilian courts, even during time of war, so long at least as the civilian courts are open and operating. The Court also found the President lacked authority to declare martial law in Indiana.

Four concurring justices argued that even though the President did not have the power to order a military trial of Milligan in the absence of congressional action, the power to authorize use of military tribunals did reside in Congress under its war power. In 1942, in Richard Quiran and seven other German military men in the trained to use explosives for the purpose of sabotaging U.S. war industries entered the U.S. in two teams of four via German submarines at New York and Florida. They were wearing German uniforms at the point of landing but immediately buried their uniforms and donned civilian attire and tried to blend into the population. They were all eventually arrested by the FBI. President Roosevelt appointed military commission to try Quiran and his comrades. The Court, voting 8 to 0, upheld the legality of trying the Germans (who the Court found to be unlawful combatants) in a military tribunal without the usual safeguards of the 5th and 6th Amendments.

The Court found the authorization of trial by tribunal supported by legislation enacted by Congress, and noted that it need not decide whether a presidential order of trial by commission would be constitutional in the absence of congressional action. One of the defendants in the case, Herbert Haupt, had been born on the U.S. and was an American citizen. The attorneys for Haupt argued that under the court's decision in Milligan, their client could not be tried by a military commission. The Court rejected that argument stating that " [M] il ligan, not being part of or associated with the armed forces of the enemy, was a non-belligerent and not subject to the laws of war, except as martial law might be constitutionally established" The Case of Jose Padilla Jose Padilla (aka Abdullah al-Mujahir) is a US. -born currently incarcerated in the Consolidated Naval Brig in Charleston, South Carolina. Until recently, had had been held incommunicado deprived of his Constitutional rights to Habeas Corpus, legal counsel and due process of law. Around 1992 or 1993, during and after a stay in a Florida jail for weapons charges, Padilla converted to Islam, and took the name Abdullah al-Mujahir.

Padilla studied under various clerics, and eventually found his way to the darker elements that now cloud Islam. According to US Attorney General John Ashcroft, Padilla met with al-Qaeda elements in Pakistan and Afghanistan several times in 2001. Moreover, Ashcroft states that Padilla 'trained with the enemy,' learning how to wire explosives and studying radioactive weapons According to US officials, Padilla met in K host with top al-Qaeda operative Abu Zubaydah in December 2001, during the Tora Bora operation. Under pressure from advancing US forces, they fled to Lahore. It was there, US officials state, that Padilla offered to carry out a bombing campaign on US soil. Padilla then allegedly received instruction in building and detonating explosives.

In February or March, Padilla is alleged to have traveled to Karachi to discuss more details with other senior al-Qaeda operatives, including plans to bomb hotels and gas stations, as well as set off a so-called 'dirty bomb. ' Dirty bombs are conventional explosives wrapped in radioactive materials. Experts claim the danger from these weapons is mostly psychological, since more damage would result from the actual explosion than from any lingering radioactivity. In April, Pakistani officials arrested Padilla for a visa violation.

US agents, already on his trail because of information they obtained from the captured Zubaydah, trailed him to Switzerland, where they state he obtained a large amount of cash. From there, on May 8, Padilla boarded a plane to Chicago, accompanied by a large number of undercover FBI agents. Padilla was arrested in Chicago, and transferred the same day to a federal detention center in New York. On December 4, 2002 Padilla, represented by his attorney Donna R. Newman, secured an order from Chief Judge Michael B. Mu kasey, U.S. District Court Southern District of New York that "he may consult with counsel in aid of pursuing this petition". The Court ordered that the government and Ms. Newman (the parties) confer so that they might agree on conditions under which Padilla may consult with Ms. Newman "that will minimize the likelihood that he can use his lawyers as unwilling intermediaries for the transmission of information to others". The parties did not agree and the case came back to the Court on March 11, 2003.

In part Ms. Newman asked that: (i) counsel be permitted to meet "privately" with Padilla without physical separation; (ii) counsel be permitted five hours per day of access to Padilla for five consecutive days; ( ) Padilla not be shackled during meetings with counsel; (iv) any "sensory deprivation" techniques to which Padilla may have been subject be suspended for three days before first meeting with counsel; (v) counsel be permitted to take notes that would be neither inspected nor confiscated; (vi) Padilla be permitted to obtain and retain copies of court papers; (vii) counsel be permitted to inspect Padilla's institutional medical records to assure that his competent to consult with them. Judge Muskasey's ruling this time was more pointed:" Once again, counsel will consult in an effort to agree on the conditions under which Padilla will consult with counsel and, if he chooses, submit facts in response to the Mobs (FBI agent) Declaration. Absent agreement, the court will impose conditions. Lest any confusion remain, this is not a suggestion or a request that Padilla be permitted to consult with counsel, and it is certainly not an invitation to conduct a further "dialogue" about whether he will be permitted to do so. It is a ruling - a determination -- that he will be permitted to do so".

Even in the face of such a clear ruling, the government still would not agree. "On March 20, 2003, in advance of a conference that had been called for the purpose of discussing the conditions for consultation between Padilla and his lawyers, the government notified the court by letter that there were no conditions to which it could agree, and reiterated its previously expressed view that such consultation could endanger national security and prevent effective interrogation of Padilla. The government disclosed that it would ask the court either to determine the conditions for consultation on its own, ... ". Conclusion How then do we balance this legitimate function of government with the government's responsibility to preserve and protect our liberty? The short answer is that we do it every day in court rooms all over America.

We accept the notion that "better ten guilty men go free than one innocent man be wrongly convicted. Which then begs the obvious question: If the civilian court system is functional, why does the government want to set up an "underground" system of military tribunals? What do they fear? Could it be the standard of evidence needed to convict in the cases that are likely to come about? Perhaps it is the trial of a jury of one's peers and its associated unpredictability.

It now appears the government was unable to obtain sufficient evidence of a crime. It may also be that even if Padilla did what he is accused of doing, that his actions are not illegal, that he broke no laws. Although they believed him to be a 'bad guy,' they did not believe they could lawfully hold him under US criminal law. Padilla was detained, therefore, not on criminal charges, but under 'material witness's tat utes. Under these rules, the government holds people for up to 30 days without representation. These statutes themselves are considered by many to be unconstitutional and a violation of civil rights.

Notwithstanding these powerful provisions, one day before Padilla was to appear before a judge, the government decided the time was right to push into new, uncharted waters. Citing ex parte Quiran, John Ashcroft, in consultation with President George W. Bush, decided that Padilla would not appear before a judge. Padilla was secretly transported to the Consolidated Naval Brig in Charleston and has been held there since. Some have argued that Quirin was wrongly decided. After all, nothing in the text of the Constitution suggests a separate category of offenses to which the Bill of Rights does not apply.

To be sure, emergency circumstances sometimes require emergency solutions. Still, the Constitution applies in both peace and war. The Framers contemplated emergencies: Article I, section 9, allows suspension of habeas corpus in cases of rebellion or invasion. Article I, section 10, allows a state, without the consent of Congress, to engage in war if it is 'invaded, or in such imminent Danger as will not admit of delay.

' The Framers could have provided for other emergency powers; but they did not. No matter, let's assume that Quirin is correct. That means unlawful combatants, captured on our soil, may be tried by a military tribunal under certain conditions. What are those conditions?

First, says Quirin, military tribunals must 'not bar accused persons from access to the civil courts. ' Compare the words of the Bush military order: A detainee 'shall not be privileged to seek any remedy... directly or indirectly... in any court of the United States. ' The Bush military order, in denying a civil judicial remedy, has violated the Quirin precedent. The Founding Fathers, having fought and won a bloody revolution to free themselves of a tyrannical king, were afraid that the President might become too powerful and take the role of monarch. To prevent this, they instituted the three branches of government known as the Executive (the President), the Legislative (Congress), and the Judiciary (the Courts). Each branch has power over the others in a delicate balance.

Congress passes laws that the President can veto or that the Supreme Court can overturn. Federal judges are appointed by the President but must be confirmed by the Senate. The President can be impeached and removed from office by the Congress, with the Chief Justice of the Supreme Court as head of the Senate trial. President Bush has now, in his action with Padilla, usurped the powers of the Judiciary.

Bush has accused, tried, sentenced, and jailed Padilla on his sole authority. If the law of war is in force, military tribunals in the United States must be, first, subject to civil judicial review; secondly, authorized by Congress; and thirdly, limited to prosecuting unlawful combatants. In any event, the order as it now stands shows too little respect for the separation of powers. The executive branch sets the rules, then prosecutes, then has sole review authority-unchecked power in a single branch of government. And those of us who raise that concern are not, in the attorney general's unfortunate and offensive words, 'giving ammunition to America's enemies,' 'aiding terrorists,' or 'eroding our national unity. ' We are, instead, upholding the Constitution, securing the values that sustain a free society, and at the same time preserving for the president the option of using military tribunals outside of the United States, where they belong.

The Confederate bombardment of Fort Sumter, the Japanese surprise attack on Pearl Harbor, the attacks on the twin towers of the World Trade Center and the Pentagon - these are the significant historical and emotional events that have tested the fabric and character of the American people. How we respond to the cowardly acts of those who hate America can be a testament to our core value - Freedom. Or it can be an indictment of our fear if we abrogate the liberties so much cherished and so dearly paid for.

Bibliography

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