Habeas Corpus And The War On Terror

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Habeas Corpus and the War on Terror

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Habeas Corpus and the War on Terror


According to Article 9 of the U.S. constitution, “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it” (U.S. Const. Art. I, §9, cl. 2). The constitution places such high importance with regard to habeas corpus that it is mentioned in the first article of the U.S. constitution. Many political scientists and critics agree that the habeas corpus symbolizes civil liberties, moving towards its extension to foreign detained “enemy combatants”. This paper supports the view that the writ liberates prisoners' who would otherwise just “disappear” without ever seeing a day in court. The writ does not exist in isolation to only protect the right to a trial. It protects other civil liberties such as freedom of speech and privacy, among other civil liberties granted by the U.S. constitution. It challenges arbitrary detention of prisoners and allows the wrongly accused to be free from guilt and punishment. The paper discusses the writ's history, its suspension, and the roles of judicial powers in reforming the habeas corpus in the context of a never-ending “war on terror”.


The Historical Evolution of Habeas Corpus

The Writ's History

Countries with the English common law implement the writ of habeas corpus ad subjiciendum principally in the determining whether an individual's detention is legal or illegal. If the latter, habeas corpus demands his or her urgent liberation. Numerous commentators argue that the writ actually reinforces the Magna Carta's 39th and 40th chapters. The earliest actual use of the writ was in 1272 until 1307 of the Tudor period, a common-law court issued it. The court called for witnesses to deliver a verdict against rival courts' affectations. Additionally, Royal tribunals consistently made use of habeas corpus to question imprisonments. The writ's use in surfaced in a wider context during the Stuart period. Selden attempted to restore the liberties of those imprisoned without showing the commitment's cause.

Darnel's Case, 3 S.T. 1 (1627) denied this use of the habeas corpus in this capacity, but it was later legalized through the Petition of Right. The jailer would bring the imprisoned to the court with the true cause of imprisonment in order for the writ to come into effect. The parliament's enactment of the Habeas Corpus Act (1967) became the statute for the Writ, developed by judicial institutions through different time periods. The Habeas Corpus Act (1816) supplemented its developments further (Wyzanski, 1946).

The earliest application of the writ in America was the denial of the writ to Leo, Frank in Frank v. Magnum. Prior to the Civil War, no judicial institution, whether state or federal, granted a writ of habeas corpus to a prisoner after conviction. In 1789, the Judiciary Act thwarted “post conviction” appeal processes through authorizing federal courts to issue writs to state prisoners. The common law on the writ of habeas corpus was ...
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