Civil Liberties, Habeas Corpus, and the War on Terror

The final assignment for this course is a Final Paper. The purpose of the Final Paper is to give you an opportunity to apply much of what you have learned about American national government to an examination of civil liberties in the context of the war on terror. The Final Paper represents 25% of the overall course grade.

Soon after the U.S. invasion of Afghanistan in 2001, the Bush administration developed a plan for holding and interrogating captured prisoners. They were sent to a prison inside a U.S. naval base at Guantanamo Bay, on land leased from the government of Cuba. Since 2002, over 700 men have been detained at Gitmo. Most have been released without charges or turned over to other governments. In 2011, Congress specifically prohibited the expenditure of funds to transfer Gitmo prisoners to detention facilities in the continental United States, making it virtually impossible to try them in civilian courts. As of April 2012, 169 remained in detention at Gitmo (Sutton, 2012).

An assumption made by the Bush administration in selecting this location was that it was beyond the jurisdiction of U.S. courts. The administration wanted to avoid any judicial oversight of how it handled detainees, characterized as enemy combatants. A possible legal challenge to indefinite detention with no formal charges or judicial proceedings might arise from the habeas corpus provision of the Constitution.

Article I, Section 9 of the Constitution 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." Under this provision, persons detained by the government are entitled to a judicial hearing to determine if there is any legal basis for their detention. Some legal commentators refer to the right of habeas corpus as the "great writ of liberty" because it is a prisoner's ultimate recourse to an impartial judge who can review the possibility that he is being held illegally by the executive (e.g., the police or the military). In nations that do not honor habeas corpus, people simply disappear into prisons without ever having their day in court.

Several controversial Supreme Court cases have come out of Gitmo. One fundamental question that has been debated, but not clearly resolved, is to what extent the war on terror justifies the President's indefinite detention of enemy combatants without the possibility of the minimal judicial review protected by habeas corpus? Another issue in the debate is to what extent Congress must clearly authorize the President to conduct extra-judicial detentions in order for them to be legal? In 2008, the Supreme Court's decision in Boumediene v. Bush offered some answers to these questions. However, the deeply divided 5-4 Court and the likelihood of the protracted nature of the war on terror suggest that debate around these important questions will continue. Writing the Final Paper in this course will prepare you to participate intelligently as a citizen in this ongoing debate.

Write an essay about the right of habeas corpus in the context of the war on terror. Your essay should address the following subtopics:

1. Explain the historical evolution of habeas corpus, including its English and American traditions. The explanation of its evolution within the American tradition should include the general meaning of the right of habeas corpus in the U.S. Constitution and its relationship to the protection of other civil liberties.
2. Provide examples from U.S. history of the suspension of habeas corpus and their applicability to the present.
3. Analyze the relevance of habeas corpus to the contemporary U.S. situation during the war on terror, especially with respect to persons characterized by as enemy combatants or illegal combatants.
4. Explain the U.S. Supreme Court's interpretation of the right of habeas corpus with respect to enemy combatants or illegal combatants (i.e., the views of the five justices making up the majority in Boumediene v. Bush as well as the views of the four dissenting justices).
5. Evaluate a minimum of four perspectives on this topic expressed by justices of the Supreme Court, leaders in other branches of government, and commentators in both the academic and popular media. Your evaluation should consider perspectives on the following topics as they relate to habeas corpus:
   1. The role of the President as Commander-in-Chief.
   2. The role of Congress in determining when habeas corpus can be suspended.
   3. The role of the Supreme Court in protecting civil liberties, including the judicial philosophy which should guide the Court in this role, and
   4. In your evaluation, you should also include your personal philosophy, values, or ideology about the balance between civil liberties and national security in the context of an unending war on terror.