Partha P.

Choudhury

MLMLA 6393 Contemporary International Relations Dr. Garcia-Contreras

On the Writ of Habeas Corpus May 8th, 2012

Abstract With the advent of the War on Terror, there have been many legalistic caveats that have been propositioned by the American government. One would assume that with a President with such a storied academic background like Barack Obama, who made a career both as a professor and as a lawyer, he would uphold certain legal notions of the rule of law which includes habeas corpus, in which there needs to be a preponderance of evidence against a potential suspect to detain them. Eric Holder, Obamas Attorney General, is at the forefront of the advocacy of denying even American born suspects the writ of habeas corpus. He asserts that many suspects have voided their constitutional rights by being enemy combatants, (whatever the exact definition of that really is) and are not beholden to the same due process ensured by the US Constitution as being a chief tenet of the trial process. Because of the haste and deliberate speed of these governmental bodies to come to an accord about these issues, many of these cases wont be brought to trial, but will instead culminate into indefinite detention at Guantanamo Prison or even worse, assassination or another State Department construct, extraordinary rendition. One can assume, that under all set circumstances, the ideological sentiment that heralded in the Obama presidency would run counter to these legalistic mental gymnastics, but thats not the case. This paper in which my theme is that the writ of habeas corpus is being denied on such a grand scale that it just might have implications for the American judicial system as well as other governments and the manner in which international jurisprudence just might lose the very right to hear cases on the docket and might usher in something that most people in the legal profession have a distaste for: the loss of impartiality in the face of the law. The term habeas corpus was originally a medieval English construct which was mandated by the court system in England even before the Norman Conquest of that island. Its

right as a precedent in English law precedes even the Magna Carta of 1215. Enshrined in it is the twofold right of both the court and the accused. The court, which is mandated by its own strictures to bring in a suspect during arraignment to deliberate upon a case, is sanctioned by its own procedures to either allow the accused to make bail or for the arraigned party to experience detention. Habeas corpus also serves as a deference to the accused as their being able to plead their case by themselves or by their representative in order to free them from indefinite detention after an inquiry has been made about their culpability or innocence. Hence the notion of habeas corpus is almost exclusively an English construct and has served as a rallying point in Common Law during the British occupation of Continental America. Even before the War of Independence was won by the Americans, the concept of habeas corpus would be a cornerstone codified in the US Constitution. Article One, Section Nine of the US Constitution guarantees those rights which are deemed inalienable to anyone within the jurisdiction of US territory. As a rule however, these rights were deemed suitable in the societal norms during that time as applicable to white and male Protestants. However since the US has gone through drastic reforms throughout decades of strife which included a civil war in which martial law had to be exercised and then the granting of rights to African-Americans during Reconstruction, the rule of law had to be applied more broadly as to guarantee everyone their full rights which are codified in the US Constitution. Perhaps the greatest demarcation which heralded in the full severance from the past came with the Civil Rights Act of 1964 in which punitive measures based upon race could no longer be deemed relevant when it came to the due process in the face of the law. However with the advocacy of the War on Terror, the right of habeas corpus seemingly has taken a slide in terms of the ability of those who advocate for rights when it comes to detainees to make effectual decisions for the purposes of the maintenance of the rule of law.

This paper is meant to address those conditions in which an enemy combatant has to succumb to the strictures of the law as it is applied to them and I cite much legislation meant to convey to the reader the depths in which the writ of habeas corpus very well might impact them as well. As the world had witnessed the symbolic act of the WTC attacks, it was assumed that an attack against the United States would be swiftly met with reprisal. What had happened was ingrained in the memory of any conscious person. The fact that a known group of terrorists had been culpable of the Tanzania attacks and the USS Cole bombings was spearheaded by an Islamic fanatic named Osama bin Laden was known by many in high level segments of the government. With these atrocities, never had it been imagined that in the epicenter of the world which is New York would come to know this sort of attack and coordination. Within months of 9/11 came the USA Patriot Act, which is a sweeping piece of legislation which would broaden the police powers of the state to monitor and assess the parameters of the US and would seek to limit the potential of foreign as well as domestic individuals to engage in terroristic activities in the US. This had resulted in a series of indefinite detentions and extraordinary renditions in the US with the guiding principle that sometimes a state has to resort to these sort of actions to keep the semblance of law and order together. What the US had been relaying to itself and to the rest of the world was that another attack, chiefly a domestic one, could not ever be perpetrated in US soil. In relative terms, some of the actions of the US was typical of its own history, with President Abraham Lincoln declaring martial law during the US Civil War or President Franklin D. Roosevelt interning Japanese-Americans in camps while WWII went on. But with a set of interest groups that were ready to disparage the government for these infringements upon civil liberties, the US government had to bolster its case to the American people that in terms of the

loyalty you should have towards your country, youre either with us or against us. With the inception of the globalization phenomenon and the sort of influence that the US had already when it comes to the sort of overreach a country can have among its neighbors, the US eventually suspended many of the attributes of its own rule of law that is a chief cornerstone of its ability to exercise governance. As had been stated before, the writ of habeas corpus grants an individual a peremptory hearing in front of a court of law and the charges are applied to them. After a thorough hearing in which theres conspicuous language that is able to be understood by the defendant, the ability to contest detention comes into the fray. Since the US is still technically a state at war, many charges wont be levied against many detainees at Guantanamo or either at the secret detention centers that the US sponsors all around the world. At these black sites, a suspect can be detained through extraordinary rendition from a certain country with which the US shares sensitive security data and be forwarded to a whole host of black sites that are around the world, quite notably in the Middle East and since the end of the Cold War, Eastern Europe. Since these are individuals who havent been notified of a charge yet are in a state of suspension legally speaking, the necessity to interrogate these suspects take place. As has been witnessed in the US media, the very term secret prison lends itself to the idea of extrajudicial practices which can include torture, sleep deprivation, loss of contact from family and other legalistic subversions done in the name of security. In these extraterritorial sites sponsored by the CIA, the US engages in acts which cannot be mimicked in the US jurisdictional territories and since many of these countries have an expertise in getting suspects to talk using illegal methods and have a history of quelling any sedition in their own countries, the suspect is cornered and cannot have any sort of legal recourse until he or she concedes the necessary information that is required of

them at these black sites. It is worth noting that many of these detainees face harsh methods that are often proceeded by chemical injections and illicit drugs that induce the detainees to lose their ability to think clearly and that is exactly the kind of coercion that has been used in the US after WWII in a project initiated by the CIA called MK Ultra. As time moves on, these interrogation methods have been more sophisticated and with the inception of globalization which heralded in the 21st century, the size, scope and the depth of these black sites are expanding. As it relates to the concept of habeas corpus, the ability of these host countries as well as apparatuses connected to the US government to bereave the detainee of his or her right to contest detention and for a trial to take place is forever inconclusive. From the vantage point of a legal system codified in the inherent right of everyone to have these inalienable rights granted to them in the US Constitution, the rule of law should be applicable to even detainees whose sentiments might be contradictory to the nations ambitions and attributes. As it relates to the language of the Constitution, the nature of anyone invading the US is beyond a reasonable doubt not feasible at this moment, hence the necessity to declare martial law isnt in the forefront. But since the 9/11 attacks, the declaration of a nation vigilant in safeguarding and securing the right to defend itself has taken on a new meaning. And ultimately what this means is that resorting to these sort of heavy-handed tactics just might see the grace of becoming a normal practice whenever it comes to securing its own interests abroad. Its efficacy, however, is debatable. Under the premise of its application, the base at Guantanamo Bay, Cuba is seemingly the most unnerving to legal experts who insist upon defending rights as representatives of their country. What is often overlooked is that the US is a signatory of the Geneva Convention in 1949 and had the US not signed this document and had a hand in drafting it to begin with, the very nature of this debate is a bit ambiguous since without the US, these rights would have never

been manifested. As it relates to Guantanamo, there has been a lack of oversight by most regulatory bodies in the US as many governmental agencies would be loathe to criticize one of their own. The facility was first established by then President George W. Bush as a locale in which detainees who had been described as merciless terrorists, would be detained and if there was sufficient evidence to release them would be integrated back into their respective countries. The very necessity to have a locale in which it was understood that the US would be interrogating these suspects but which should also be outside the jurisdiction of the US leaves the impression that there are many extrajudicial practices that occur there which could be illegal in the US. In a Supreme Court case called Hamdan v. Rumsfeld, it was found after a thorough investigation that there were indeed violations of the Geneva Convention and the Uniform Code of Military Justice and other obligations that are enforced by treaties. This case which set the precedent for legal inquisitions into a facility like Guantanamo was media publicity fanfare and a discussion among people who had an earnest interest in either seeing the value of maintaining these sorts of detention facilities or those people who wanted them done away with and who have qualms of their own regarding fundamental rights which should be deferred to even unlawful enemy combatants. As the issue was being debated among politicians, legal experts and others in the media, the debate reached the 2008 Presidential Elections which pitted Senator Barack Obama against Senator John McCain from Arizona. McCain, as an ardent and hawkish politician, conveyed to the electorate that Guantanamo was a useful tool and anything done in the name of national security could have its own merits. Obama, whos a lawyer and previous professor, had an inverse reasoning against McCains and saw Guantanamo as an outrage in the face of US Constitutional law. Each candidate was demarcated by his war stance and it was relayed to the American public that one candidate would stand up for inalienable rights even in

trying times and the other, if granted the US presidency, would most likely enact legislation that would contribute to the enormity of powers granted to the government over questions about what could be tolerable in terms of legality for detaining persons deemed to be enemy combatants. With Barack Obamas ascendency to the US presidency, it was seen that civil liberties would enjoy a renaissance in the face of a country that was hotly debating what the limits of tolerance would be when it came to detainees enjoying the same constitutional rights afforded to American citizens without delay. However with a President who had an image of a populist leftist Democrat, one of the first acts the then Senator Obama did was to vote for a bill called the FISA Amendment Bill (Foreign Intelligence Surveillance Act) which granted immunity to many telecom companies who work with the US government for surveillance on US citizens domestically, as FISA doesnt apply outside of the US. This symbolic move was to set the precedent of what would become Obamas stance on civil liberties no matter how much people on the left like to insist that Obama is a champion of them. Since the very justification for electing Obama into the US Presidency was to give Americans that safeguard of guaranteeing these inherent rights, there is little to wonder about the discontent and malaise many Americans feel regarding the plight of constitutional rights. In a speech he gave in front of a crowd during his campaign, the then candidate deplored the precarious stance of the then Bush administration towards habeas corpus. However in 2009 and after gaining the presidency, Obama has done the contrary and has urged appeals courts to void the writ of habeas corpus to detainees in order to keep them and interrogate them indefinitely as per what his expectations were regarding the Patriot Act, a piece of legislation he had promised to repeal during his campaign. With a president whos completely bent upon curtailing rights just as broadly as his predecessor, the American people who had

voted him into office are finding that the most fundamental of rights inherent in the Bill of Rights of the US Constitution are being voided in the name of national defense. As relative of a term it is, it has the rebounding effect of sounding compulsory and protective in the face of a world that is ready to do harm to US interests. But with insights from many in the civil sector and officials, what exactly all of this is going to culminate into cannot be a shining example of liberty but is that of a retraction of inherent rights done in the name of securing liberty, which in itself is a contradictory statement. Going further into the Obama presidency, in December of 2011, the ACLU had lodged a formal complaint against the National Defense Authorization Act of the Fiscal Year of 2012 as having impeded the rights of detainees the modicum of rights, which includes habeas corpus. All of this is relative to the determinism of the Obama administration to conduct drone strikes in which civilians are murdered along with supposed combatants. With incursions into nominally enemy territory in places like the Northwestern Frontier and Waziristan in Pakistan, the US government has applied the right to conduct clandestine missions where it has no sovereignty in, but with compliant governments who say in public that theyre against these transgressions however tacitly agree with the American methodology and see them as having granted their governments a favor, the uptick in these sorts of perfidy tactics is bound to accelerate, not diminish. Ultimately, the US government is conducting a proxy war with various locales as theaters and what I believe many had indeed saw coming was that the US government would resort to the extrajudicial murders of people all around the world, negating the necessity of deferring to the rule of law and even the right to a trial and procedure. The go-to man in the Obama administration is his Attorney General Eric Holder. His position as the chief law interpreter for his administration is meant to be seasoned by his

President. Because the Obama administration has opted to go the route of waging continual war in which lives are lost each day, the Attorney General of the US must use adept language to convey to the American people and to the world that in terms of discretion, the President is free to use all necessary measures to protect American interests. As Holder puts it, the threat has to be assessed, then the question of feasibility of capture, and third, that the principles of war arent violated. Theres a misstep in Holders viewpoint, and what should be an override to his discretionary powers and that even of his President is the US Constitution. And since there are many US born Islamic extremists, the due process clause of the Constitution is indeed applicable to their circumstances. Without adequate hearings, albeit in certain instances under secret courts under US jurisdiction, the ability to contest information that might prove innocence or culpability is now currently being dismissed as irrelevant. There is expressed language in the Constitution that no bill of attainder, or in other words an execution without a trial, should ever be passed by the US government and technically that still stands as law. The disparity between Obama the candidate and Obama the President has been made manifest through the words of his Attorney General. If anything, Holder is toe in line in John Yoo, the author of the Bush administrations CIA enhanced interrogation methods. As the prior history of the US government goes even through the McCarthy HUAC (House Un-American Activities Committee) hearings, the process of blacklisting, libel and slander isnt beyond the scope of this government. Now with secretive meetings taking place, closed door committees decide the fate of Americans and other foreign nationals all the while having full immunity from the public purview. If anyone is thinking that with the recent rise of activism in the American urban centers are being deemed reactionary and threatening by the US

government, there is accumulated data upon many lawful US citizens to dissuade them from their activist mentalities and pursuits. All of this might lend itself to groups being nominally targeted as domestic terrorists who can be left bereft of their due process rights. This isnt just conjecture; this is symptomatic of a typical day of many in security bureaus throughout the US. Summation and Conclusion Obamas ambiguous position as both Nobel Peace Laureate and war criminal is bound to offend many who see that the latter one disregards the potential of the other. As my paper has shown, the very incentive of having the Obama presidency to begin with was to foster peace and security within its borders and with the rest of the world. But it seems that this President is following in tandem with his predecessor in the suspension of the writ of habeas corpus. If a man who used to be a constitutional professor cannot be shaken about the constitutional overrides his administration is exercising in the name of security and governance, then the American people face a huge problem. However with the world experiencing globalization at an incredible rate of intensity, velocity and size, borders are starting to become diminished and the era of Pax Americana which had been fostered by the Clinton administration in the 1990s has been done away with completely. The coordinated attacks of 9/11 was the sort of reckoning that the US should have avoided at all circumstances and if the premise of the attacks was to make a new world, then that is a world that is completely less secure, with indefinites abound, and gives nations the proclivity to continually wage war on a heedless scale. How this relates to habeas corpus is that the very vestiges of trial and procedure are being derailed in a questionable manner, and this is starting to become the trend. Had habeas

corpus not been codified in the legal frameworks of most nations in the world who posit that they are fair and honest when it comes to judgment, there would have been extrajudicial mechanisms which would usher in a sort of laissez faire and taking retroactive steps in terms of what it is that a state can do and what it should be sanctioned away from practicing. When this is compared with International Relations, away from the esoteric schools of thought within that discipline, habeas corpus is a standard and the need to use restraint against it is seen as draconian and antediluvian; something that cant propel countries to a standard. As long as the rule of law is a chief tenet of discipline in International Relations, safeguarding populations from harm can almost become a relative term and some relationships are ever waxing prosperous as new identities are formed and accords are being struck in the name of security and comity. When the rule of law applies to a nation as manifest as the US when it comes to a country at war, the guarantee of habeas corpus serves as a precept for fairness and honesty. However symptomatic of a world that the US is intent upon policing, this cannot last. The US government has an onerous decision to make regarding its own capabilities to see if theyre exhausted and the political capital that it has accrued in various parts of the world isnt being disregarded. The US has the dubious distinction as being the leader of the so-called free world and exercising tyranny both abroad and domestically and that is a trend that cannot continue.