Essay on "Habeas Corpus"

Essay 6 pages (2032 words) Sources: 5 Style: APA

[EXCERPT] . . . .

As the war on terror continues to gain momentum in the contemporary United States, the government has continued to resist access to the legal mandate on the argument that such an action could interfere with military operations and Executive Branch authority. The numerous concerns and questions about access to habeas corpus by illegal combatants is complex because of its multifaceted nature. This is largely because it involves issues on effective control, status of the detained individuals, territorial jurisdiction, and separation of powers. The access of habeas corpus in the unending context of war on terror has several implications on constitutional law, case law, statutory law, and international humanitarian law. In many national security emergencies and national security issues in the context of war on terror, the right of habeas corpus and its applicability in the rule of law has constantly emerged.

The privilege of habeas corpus has continued to act as a safeguard of individual liberty and restriction on arbitrary executive action since the 9/11 attacks. As the war on terror continues, the writ to habeas corpus will still be unable to end the indefinite and extrajudicial detention of individuals classified as illegal combatants by the President. As the commander in Chief, the President has a major role in determining the applicability of habeas corpus through the Supreme Court may make several rulings to the contrary in attempts to protect civil liberties. Nonetheless, Supreme Court rulings have sent a message that the president's war policies could only continue if they received statutory support from new congressional legislation (Shaw, 2009). The President and the government have continued to use emergency executive powers to detain prisoners while neither the president nor the Congress has invoked the constitutional right to suspend habeas corpus because of lack of rebellion or military invasion.

Conclusion:

Habeas corpus will continue to protect individual liberty and provide means for limiting arbitrary executive actions. As the war on terror continues, access to this legal mandate will be unavailable because some detention facilities remain beyond the reach of habeas corpus and efforts by the government to detain prisoners beyond the jurisdiction of U.S. courts. While it's vital to the U.S. Constitution, habeas corpus will fail in averting ongoing erosion of due process and increase in state power that are becoming stable features of U.S. national security policy.

References:

Chemerinsky, E. (n.d.). Thinking About Habeas Corpus. Retrieved from Duke University School

of Law website: http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1667&context=faculty_scholarship

"Civil Liberties Notes." (n.d.). A Two-Year College of the University System of Georgia.

Retrieved from Bainbridge College website: http://fsweb.bainbridge.edu/jvanzo/Civil%20Liberties.pdf

Doyle, C. (2006, April 26). Federal Habeas Corpus: A Brief Legal Overview. Retrieved July 16,

2012, from http://www.fas.org/sgp/crs/misc/RL33391.pdf

Farrell, B. (2010, April 1). Habeas Corpus in Times of Emergency: A Historical and Comparative View. Retrieved from Pace University website: http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1011&context=pilronline

Shaw, J. (2009, January). The War and the Writ. Retrieved July 16, 2012, from http://harvardmagazine.com/2009/01/the-war-the-writ?page=all READ MORE

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