On Oct. 17, 2006, President George W. Bush signed a law suspending the right of habeas corpus to persons "determined by the United States" to be an "enemy combatant" in the Global War on Terror.
Bush's action drew severe criticism, mainly for the law's failure to specifically designate who in the United Stateswill determine who is and who is not an "enemy combatant."
'A Time of Shame This Is'
Jonathan Turley, professor of constitutional law at George Washington University, objected to Bush's support for the law—the Military Commissions Act of 2006—and its suspension of writs of habeas corpus. He stated,
"What, really, a time of shame this is for the American system. What the Congress did and what the president signed today essentially revokes over 200 years of American principles and values."
Not the First Time
The Military Commissions Act of 2006 was not the first time the Constitution's guaranteed right to writs of habeas corpus was suspended by an action of a president.
In the early days of the U.S. Civil War President Abraham Lincoln suspended writs of habeas corpus.
Both Bush and Lincoln based their actions on the dangers of war, and both presidents faced sharp criticism for carrying out what many believed to be an attack on the Constitution.
What It Is
A writ of habeas corpus is a judicially enforceable order issued by a court of law to a prison official ordering that a prisoner mustbe brought to the court so it can be determined whether that prisoner was lawfully imprisoned and, if not, whether they should be released from custody.
A habeas corpus petition is a petition filed with a court by a person who objects to their own or another's detention or imprisonment.
The petition must show that the court ordering the detention or imprisonment made a legal or factual error. The right of habeas corpus is the constitutionally bestowed right of a person to present evidence before a court that they have been wrongly imprisoned.
Where the RightComes From
The right of writs of habeas corpus is granted in Article I, Section 9, clause 2 of the Constitution, which states,
"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."
Bush's Suspension of Habeas Corpus
President Bush suspended writs of habeas corpus through his support and signing into law of the Military Commissions Act of 2006.
The bill grants the President of the United States almost unlimited authority in establishing and conducting military commissions to try persons held by the U.S. and considered to be "unlawful enemy combatants" in the Global War on Terrorism.
In addition, the act suspends the right of "unlawful enemy combatants" to present or to have presented in their behalf, writs of habeas corpus.
Specifically, the Act states,
"No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."
Importantly, the Military Commissions Act does not affect the hundreds of writs of habeas corpus already filed in federal civilian courts on behalf of persons held by the U.S. as unlawful enemy combatants. The act suspends only the accused person's right to present writs of habeas corpus until after their trial before the military commission has been completed.
As explained in a White House Fact Sheet on the act,
"... our courts should not be misused to hear all manner of other challenges by terrorists lawfully held as enemy combatants in wartime."
Lincoln's Suspension of Habeas Corpus
Along with declaring martial law, President Abraham Lincoln ordered the suspension of the constitutionally protected right to writs of habeas corpus in 1861, shortly after the start of the American Civil War. At the time, the suspension applied only in Maryland and parts of the Midwestern states.
In response to the arrest of Maryland secessionist John Merryman by Union troops, then-Chief Justice of the Supreme Court Roger B. Taney defied Lincoln's order and issued a writ of habeas corpus demanding that the U.S. Military bring Merryman before the Supreme Court.
When Lincoln and the military refused to honor the writ, Chief Justice Taney in Ex-parte MERRYMAN declared Lincoln's suspension of habeas corpus unconstitutional. Lincoln and the military ignored Taney's ruling.
On Sept. 24, 1862, President Lincoln issued a proclamation suspending the right to writs of habeas corpus nationwide.
"Now, therefore, be it ordered, first, that during the existing insurrection and as a necessary measure for suppressing the same, all Rebels and Insurgents, their aiders and abettors within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice, affording aid and comfort to Rebels against the authority of United States, shall be subject to martial law and liable to trial and punishment by Courts Martial or Military Commission:"
Additionally, Lincoln's proclamation specified whose rights of habeas corpus would be suspended:
"Second. That the Writ of Habeas Corpus is suspended in respect to all persons arrested, or who are now, or hereafter during the rebellion shall be, imprisoned in any fort, camp, arsenal, military prison, or other place of confinement by any military authority of by the sentence of any Court Martial or Military Commission."
In 1866, after the end of the Civil War, the Supreme Court officially restored habeas corpus throughout the nation and declared military trials illegal in areas where civilian courts were again able to function.
Differences and Similarities
There are differences and similarities between the actions of presidents Bush and Lincoln:
- Presidents Bush and Lincoln both acted to suspend habeas corpus under the powers granted to them as Commander in Chief of the U.S. Military during a time of war.
- President Lincoln acted in the face of an armed rebellion within the United States: the U.S. Civil War. President Bush's action was a response to the Global War on Terrorism, considered to have been triggered by the Sept. 11, 2001, terrorist attacks in New York City and the Pentagon. Both presidents, however, could cite "Invasion" or the much broader term "public Safety" as constitutional triggers for their actions.
- President Lincoln suspended habeas corpus unilaterally, while President Bush's suspension of habeas corpus was approved by Congress through the Military Commissions Act.
- President Lincoln's action suspended the habeas corpus rights of U.S. citizens. The Military Commissions Act of 2006, signed by President Bush, stipulates that the right of habeas corpus should be denied only to aliens "detained by the United States."
- Both suspensions of habeas corpus applied only to persons held in military prisons and tried before military courts. The habeas corpus rights of persons tried in civilian courts were not affected.
Continued Debate
Certainly, the suspension—even if temporary or limited—of any right or freedom granted by the U.S. Constitution is a momentous act that should be carried out only in the face of dire and unanticipated circ*mstances.
Circ*mstances like civil wars and terrorist attacks are certainly both dire and unanticipated. But whether one, both, or neither warranted the suspension of the right of writs of habeas corpus remains open for debate.
On June 12, 2008, the U.S. Supreme Court ruled 5-4 that in the case of Boumediene v. Bush that the Military Commissions Act (MCA) of 2006, which barred foreign nationals held by the United States as “enemy combatants” from challenging their detentions in U.S. federal courts, was an unconstitutional suspension of the writ of habeas corpus.
In 2002, six Algerians had been arrested in Bosnia and Herzegovina on suspicion of plotting to attack the U.S. embassy in Sarajevo. After being designated enemy combatants, they were imprisoned at the Guantánamo Bay detention camp on the U.S. naval base at Guantánamo Bay, Cuba. One of the detainees, Lakhdar Boumediene, petitioned in federal district court for a writ of habeas corpus, which was denied because the camp was outside U.S. territory and therefore not within the court’s jurisdiction. In 2004, however, the Supreme Court ruled 6-3 in the landmark case of Rasul v. Bush that the “plenary and exclusive” jurisdiction of the United States over the Guantánamo Bay naval base entitled foreign nationals held there to habeas corpus privileges.
Fearing a rash of habeas corpus petitions by hundreds of foreign detainees in Guantánamo Bay, Congress passed the MCA, which stripped the federal courts of jurisdiction to hear habeas corpus petitions on behalf of foreign detainees who had been designated enemy combatants according to procedures established in the Detainee Treatment Act (DTA) of 2005. Based on the MCA, the United States Court of Appeals for the District of Columbia Circuit denied Boumediene’s second appeal. The Supreme Court granted a writ of certiorari, and oral arguments in the case of Boumediene v. Bus were heard on Dec. 5, 2007.
The main issue to be decided in Boumediene v. Bush was whether the MCA violated the Suspension Clause of Article I of the Constitution, which states: “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.” In a 5–4 ruling, the court held that the MCA did violate the Suspension Clause. Writing for the majority, Justice Anthony M. Kennedy argued that “because the DTA’s procedures for reviewing detainees’ status are not an adequate and effective substitute for the habeas writ, [the] MCA…operates as an unconstitutional suspension of the writ.” Detainees “are not barred from seeking the writ or invoking the Suspension Clause’s protections because they have been designated as enemy combatants or because of their presence at Guantánamo.” In his separate dissenting opinion, Justice Antonin Scalia memorably warned that the court’s decision “will almost certainly cause more Americans to be killed.”
