American National Government


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United States presidents exercise their presidential privilegeduring crisis. Historically, the presidents’ decisions, have beenunchallenged by the Supreme Court during mitigating situations due tothe privileges they enjoy. Terrorism is an illustration of suchmitigating situations. Following the September 11 attacks, the USadministration has exercised its authority to detain suspect terroror unlawful groups as an endeavor towards ensuring the country’ssecurity. Such deeds impede the habeas corpus right, which is meantfor granting suspect criminals due court processes. This has raisedthe question, to what extreme the battle on terror validates thePresident’s right to detain terror groups with no judicial reviewas mandated by habeas corpus.

The essay evaluates the habeas corpus right in the milieu of the waron terror. This involves an explanation of habeas corpus historicaldevelopment, illustrations of its suspension, relevance tocontemporary American situation in the fight against terrorism, andthe Supreme Court’s interpretation concerning the freedom of habeascorpus with regard to unlawful combatants.

Historical Evolution

The right of habeas corpus, as explained by the Americanconstitution, is a writ by judicial directive that allows prisonersthe freedom to appear in court, as a way of ascertaining if theprisoner needs to be detained (Hertz&amp Liebman, 2001, 2). The constitution permits the prisoneror the person representing them to a court petition for a writ.Essentially, the habeas corpus right prevented the executive fromimprisoning individuals, because the writ implies that an individualhas the freedom to be heard in court concerning the charges filedagainst them. The habeas corpus safeguards civilians from unlawfuldetention, while at the same time ensuring the second right includedin the American Declaration of Independence, which is thefreedom from incarceration without reason.

The habeas corpus historical evolution dates from Magna Carta, 1215.The Magna Carta prohibits the unlawful restriction orconfinement of individuals apart from via legal declaration(Collings, 1952, 13).Initially, the right was employed in summoning persons before court,but towards the 14th era, Supreme Courts were employing the writ as amanner of assessing the reasons for a person’s incarceration bylower courts. Towards the close of the 16th century, the courts wereemploying habeas corpus as a manner of enquiring on the incarcerationof persons ordered by King Councils (Collings,1952, 13). In the 17th century, Parliament sought a manner ofreinforcing habeas corpus, leading to the 1679 Habeas Corpus Act(Collings, 1952, 13).Following further expansion of English law, Britain publicized thehabeas corpus, spreading to US lawful practice, where it was includedin the 1789 Judicial Act and Article 1 of the AmericanConstitution.

As the Revolutionary War ended, the habeas corpus became an integralpart of the US constitution. During Thomas Jefferson’s presidentialrule, he emphasized on the significance of the habeas corpus.Jefferson argued that as a democratic state, it was important for thecountry to operate under the strengthening of habeas corpus. Despiteits evolution, the habeas corpus progresses to hold the similarfundamental principles. The right has been subject to uncertainty inthe interpretation of its precise meaning. Though the right was notincorporated into the Bill of Rights, it was used insafeguarding the civil liberties of US civilians. Habeas corpusmainly mandated administrations to charge their prisoners or freethem. All through the 20th century, the Supreme Court has constantlyestablished the significance of the habeas corpus right. This is dueto the court’s realization that the habeas corpus is the basicinstrument for protecting personal rights against uninformed andillegal state action.

Suspension of Habeas Corpus

The right of habeas corpus safeguards the freedom to appropriatejustification from administration following imprisonment. Inaddition, the right defends a person’s right from outlaw withouttrial. However, the American constitution allows for the suspensionof habeas corpus right during events that involve intrusion of publicsafety (Hertz &amp Liebman, 2001,4). The right was initially suspended in 1861, April 27 by thethen President Abraham Lincoln. The suspension applied to Marylandand different sections of Midwestern states. It was a reaction touprising as well as local military action, in addition to thepossibility of Maryland seceding from the Union. Another illustrationof the habeas corpus suspension happened during the 1870sreconstruction (Oaks, 1965, 17).

During the presidency of Ulysses S. Grant, his response towards thecivil freedoms impediments by the Ku Klux Klan involved suspension ofthe habeas corpus (Satanovsky,2012, 1). Former president George W Bush has as wellchallenged the stipulations provided under the habeas corpus writfollowing his authorization to arrest prisoners at Guantanamo Bay.The suspensions progress to apply to date. This is because there arestill individuals held at Guantanamo Bay, who have been unable toaccess due court process. This has resulted in great criticism andconcern by the Supreme Court and largely civilians. Laws like theAntiterrorism and Effective Death Penalty Act, as well as theMilitary Commissions Act passed during President Clinton’sera progress to restrict the habeas corpus right.

Relevance of Habeas Corpus

Habeas corpus progresses to be relevant in present-day Americansituations. Following the September 11 attacks, America has embarkedon the ultimate objective of ceasing terror attacks in the UnitedStates and internationally. This has resulted in the apprehensionwithout trial of individuals that are deemed a threat to America.Major targets have been US civilians from Middle East decent allegedto be members of the Taliban. This has been made possible followingparliament’s enactment of the Authorization for Use of MilitaryForce (AUMF), allowing President Bush’s government to employall important and suitable force in fighting groups or individualsdeemed to aid in terrorism. As a result, the right of habeas corpusapplies in ensuring that US civilians suspected to engage interrorism are subject to due court process. Since it is possible forinnocent individuals to be regarded as illegal combatants because oftheir country of origin, the habeas corpus writ protects the civilliberties of such persons.

Supreme Court Interpretation

America’s Supreme Court explanation of the habeas corpus rightconcerning unlawful combatants is explained via the Boumediene v.Bush case (Center forConstitutional Rights, n.d.). The Supreme Court during the2008 case ruling argued that even the illegal enemy groups detainedat Guantanamo Bay, had the freedom to habeas corpus. Thisdemonstrates that the Supreme Court supports the safeguarding ofcivil liberties, which implies that the American government did nothave the mandate to detain persons without fair trial, or allowingthe suspects to have hearings in court. Following terrorism attacksand attack of Afghanistan, the American administration created a campat Guantanamo.

The captives were not permitted to appeal for habeas corpus. Congressenacted a law in 2006, making it improbable for captives to appealfor summons. In the Boumediene v. Bush case, Justice Kennedy arguedthat despite the petitioners being alien, the habeas corpus rightshould have been allowed (Centerfor Constitutional Rights, n.d.). The ruling resonates to thatof the Detainee Treatment Act, providing processes for reviewingillegal combatants’ cases. Justice Thomas, Roberts, Alito andScalia disagreed over Justice Kennedy’s decision. The dissentingjustice’s argument was that the combatants’ jurisdiction did notallow them to enjoy habeas corpus right, arguing the case could havebeen evaluated within the district level (Cole, 2008, 27).

Perspectives Expressed by Justices

The president acting as the commander in chief is accountable fordetermining the perfect course of action during a problem, whichaffects the entire nation. The main objective of the president oughtto be safeguarding of America and the civil freedoms civilians needto enjoy (Fallon &amp Meltzer,2007, 21). The president undertakes two functions, whichincludes acting as a domestic policy as well as foreign policypresident. In instances of war, it is common for United Statespresidents to exercise more power. A president’s reaction during aterror attack needs to be in line with the constitution. Duringpresident’s Bush administration, Congress was adamant to intrude inthe development made in Guantanamo.

The constitution does not make apparent, individuals that have thepower of suspending habeas corpus (Fallon&amp Meltzer, 2007, 23). Congress is capable of helping thePresident through enacting laws, which are in line with theconstitution. The function of America’s Supreme Court involvesensuring the laws enacted by the Legislature and Executive isconstitutional. The verdicts made by the court during the Boumedienev. Bush case, act as an illustration of the Supreme Court’s role insolving prospect habeas corpus analysis. The court’s role involvesmaking certain that cases presented adhere to civil liberties, inaddition to being constitutional.

Personal Philosophy

The war on terror has proven to be challenging. This is becausemaintaining a balance amid civil liberties, as well as nationalsecurity in the milieu of a constant terror war is almostunachievable. My personal philosophy is that the Americanconstitution applies to the protection of US civilians’ civilfreedoms. According to the Fifth Amendment, individuals have thefreedom to maintain silence, in addition to having an attorney. Theamendment is aimed at defending the rights of any American civilianand does not apply to foreign illegal combatants. This means that theright of habeas corpus applies in protecting the freedoms of UScivilians. Illegal combatants are individuals that cause peril toAmerica and the world, and such persons should be detained. However,in determining their incarceration, America needs to work towardsensuring that the individuals suspect of being illegal combatantsalso enjoy the same rights as other offenders. Thus, they should beallowed to a fair trial and sentenced accordingly. The president haspower in determining the course of action during terror attacks.Despite the power, it is necessary to work within the mandate of theconstitution.


The right of habeas corpus has been in existence for many years. TheUS constitution defines it as a writ, which allows prisoners a rightto due court process. This means that no individual should beincarcerated prior to being provided the opportunity to have a courthearing. However, there are instances when the habeas corpus ispossible to suspend. Illustrations have been in cases where thesuspension has been deemed as a measure towards protecting Americans.The Supreme Court in its role on ruling over cases must ensurefairness as stipulated by the constitution.


Center for Constitutional Rights,(n.d.), Legal Analysis: Boumediene v. Bush/Al Odah v. United Statesretrieved from boumediene-v.-bush/al-odah-v.-united-states

Cole, D. (1997). Jurisidiction andLiberty: Habeas Corpus and Due Process as Limits on Congress`sControl of Federal Jurisdiction.&nbspGeo.LJ,&nbsp86,2481.

Cole, D. (2008). Rights overBorders: Transnational Constitutionalism and Guantanamo Bay.&nbspCatoSupreme Court Review.

Collings, R. A. (1952). HabeasCorpus for Convicts. Constitutional Right or Legislative Grace?.&nbspCaliforniaLaw Review, 335-361.

Fallon Jr, R. H., &amp Meltzer, D.J. (2007). Habeas corpus jurisdiction, substantive rights, and the war on terror.&nbspHarvardLaw Review, 2029-2112.

Hertz, R., &amp Liebman, J. S.(2001).&nbspFederalhabeas corpus practice and procedure&nbsp(Vol.2). LexisNexis.

Oaks, D. H. (1965). Habeas corpusin the states: 1776-1865.&nbspTheUniversity of Chicago Law Review,243-288.

Satanovsky, G. (2012). PresidentGrant suspends habeas corpus. Retrieved from