I would have ruled this world too, if it weren't for you meddling kids!
Friday, November 17, 2006


Here it is! My bitchings and ravings on a certain topic led to an entire research paper. If you don't read it, I don't blame you. But you kind of should.

The Suspension of the Writ of Habeas Corpus and American Freedom

With the passing of the Military Commissions Act, signed into law by President George W. Bush on October 16, 2006 ("Military Commission Act of 2006" 1), American citizens have lost one of their essential freedoms. If you are arrested, the Constitution of the United States requires that authorities must "show a court cause as to why someone is being held" (Stone 1). This constitutional right is known as the Writ of Habeas Corpus. Not many Americans realize that the Writ was essentially suspended by the recent passing of the Military Commissions Act. Many of President Bush's supporters argue that this suspension only includes terrorists and illegal aliens, and that anyone who thinks it could be used against Americans is being paranoid. I intend to show that the language of this law is ambiguous and has full potential to include American citizens. I intend to illustrate that when the Writ has been suspended or ignored in past history, many citizens of this country were jailed indefinitely. These precedents prove that modern Americans have every reason to fear for their freedom today.

What is the Writ of Habeas Corpus? As defined above, it is the unconditional guarantee that an American citizen cannot be detained indefinitely without being told why they are being held (Stone 1). If a court of judge determines that no criminal charges can be filed against a person, then they must be released (Robertson 1). The Writ of Habeas Corpus is so important that it appears in the main body of the Constitution, whereas our other rights are listed in the first ten amendments (Robertson 1).

It must be noted that the Writ of Habeas Corpus was not the invention of our American forefathers. The Writ is ancient and appears in the Magna Carta, signed by King of England in 1215 ("Convicts to Australia" 1). It has protected the rights of accused people across the world for many centuries now, and our American forefathers knew that the Writ is one of the essential building blocks of a democracy.

However, with the passage of the Military Commissions Act, the Writ has been suspended, supposedly only for certain individuals. What exactly does the Military Commission Act state?

"Section 94a of Title 10 of the United States Code:
(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant; or
(ii) a person who, before, on or after the date of the enactment of the Military Commission Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of the Defense" ("Military Commissions Act of 2006" 2).

Clearly, this defines for us that it is terrorists, supporters of terrorism, and unlawful enemy combatants who forfeit Habeas Corpus rights. Anyone who remembers the World Trade Center bombing of September 11, 2006 knows exactly what a terrorist is, but what is meant by an enemy combatant? An enemy combatant is "a person designated by the United States President as an enemy fighter (El-Najjar 1). The term "enemy combatant" was created by the Bush Administration (Greenberger 1).

So ultimately it is at the discretion and whim of President George W. Bush whether a person is designated an "enemy combatant". The definition is purposely vague and unclear; anyone deemed an "enemy fighter" or perhaps even an "enemy of Bush" can now, by law, be detained indefinitely without access to the court system. Bush supporters argue that the President would never abuse his power to jail American citizens. However, a review of American history regarding prior suspension of the Writ of Habeas Corpus by two of our most important presidents reveals that abuse of power and indefinite incarceration of American citizens was the result.

In the year 1862, Abraham Lincoln took advantage of the fact that Congress was on vacation to suspend the Writ of Habeas Corpus himself ("Did President Lincoln suspend the U.S. Constitution?" 1). While Lincoln stated that the suspension was only to detain Southern insurgents, over 13,000 people were eventually jailed. These included many people of the North, the U.S. citizens at that time. Lincoln declared that anyone who engaged in "disloyal practices would come under Martial Law” ("Did President Lincoln…" 1). As a result, Lincoln found just cause to detain people who were his critics.

Eventually, the Supreme Court struck down Lincoln’s suspension of the Writ of Habeas Corpus as unconstitutional. No president is "constitutionally empowered to suspend the Writ of Habeas Corpus, even in time of war, if the ordinary civil courts were functioning"(Stone 2).

Apparently paying attention to his history, President Franklin D. Roosevelt did not suspend the Writ of Habeas Corpus, he merely ignored it. By executive order, he ordered the Army to prepare camps where Japanese prisoners could be held during World War II (Stone 2). By the fall of 1942, "more than 110,000 people of Japanese descent, two-thirds of them American citizens" (Stone 2), were held indefinitely, without benefit of trial. Some of these were held long after the war had ended, some not being released until 1949 ("Japanese Canadian Internment" 2). The lives of many of these people were ruined.

In 1980, the Civil Liberties Act was signed by President Ronald Reagan, "offering an official presidential apology and reparations to each of the Japanese American internees" (Stone 3). Since the Writ of Habeas Corpus was ignored instead of officially suspended, the Supreme Court did not rule on Roosevelt’s actions. However, a presidential apology speaks volumes as to the constitutional value of Roosevelt’s executive order.

So why is President George W. Bush suspending the Writ of Habeas Corpus now? It is a law that has served civilization for many centuries, and as it has been shown, America’s two prior attempts at tampering with it have resulted in thousands of American citizens being imprisoned. Most of these people committed no crime at all. President Bush claims it is suspended as "a part of making sure that we do have the capacity to protect you. Our most solemn job is the security of this country" (Olbermann 1). However, he does not explain how denying anybody the right to our courts will help to protect us. He also does not explain how violating the U.S. Constitution will provide our security. Because indeed, the Military Commissions Act of 20-6 is unconstitutional.

"The American Constitution, Article I, section 9:
The privilege of the Writ of Habeas Corpus shall not be suspended, unless in case of rebellion or invasion, the public safety may require it" (Robertson 2).

The United States is not in rebellion, nor have we been currently invaded, therefore to suspend the Writ of Habeas Corpus is unconstitutional. As we ponder the historical precedents, we are left to wonder "why"?

President Bush has 795 days of his administration left at the time of this writing. I urge every American who is serious about the freedom to use this time to screen carefully their choice of candidate for our next President of the United States. Where does your preferred candidate stand on the issue of the suspension of the Writ of Habeas Corpus and the Military Commissions Act? Everyone should research carefully and vote accordingly. The only way to solve this serious problem is to stand together as a nation and vote to get back this freedom we have so foolishly allowed President Bush to take away from us.

Works Cited

"Convicts to Australia." A Guide to Researching your Convict Ancestors. 14 Nov. 2006

"Did President Lincoln suspend the U.S. Constitution?" American Patriot Network. 1999 14

Nov. 2006

El-Najjar, Hassan. "Conflict Terminology: A Note for Editors, Journalists, and Readers." 15 Sept. 2004. 14 Nov. 2006

Greenberger, Michael. "The Missing Link." Legal Affairs Sept/Oct. 2005: 1. 5 Nov. 2006

"Japanese Canadian Internment." Wikipedia org. 2006. Wikipedia. 17 Nov. 2006

"The Military Commissions Act of 2006." Wikipedia org. 2006. Wikipedia. 15 Nov. 2006

Olbermann, Keith. "The Death of Habeas Corpus." MSNBC 11 Oct. 2006. 17 Nov. 2006

Robertson, Joseph Dale. "Habeas Corpus: The Most Extraordinary Writ." Center for the Preservation of Habeas Corpus. World Newsstand. 5 Nov. 2006

Stone, Geoffrey R. "Civil Liberties at Risk Again: A U.S. Tradition." (2003): 1. Chicago Tribune. Academic Search Premier. Durham Tech Community College, Durham,
Durham Tech Lib. 5 Nov 2006