The Habeas Corpus Rights in the Context of the War on Terror


This paper provides a broad discussion on the observance of the writ of habeas corpus amidst the changing political landscape necessitated by the war on terror. The war on terror has resulted in critical developments in the judicial realm. The protection of the rights, freedoms, and liberty of individuals remains the responsibility of the state, especially under the statute of habeas corpus.

Concerns are raised in the paper about the changes that are enforced by the state (executive arm) in dealing with terrorism, more so the detention of terrorists and terror suspects and the denial of the rights of habeas corpus to the detainees. The paper finds out that a friction exists between the executive arm, the legislative, and the judicial arms where the state argues that the full embrace of the right of habeas corpus derails the war on terror. On the other hand, the courts insist on the observance of habeas corpus through a number of judicial determinations for the sake of safeguarding individual liberty.


The recent developments in the issues of international security, especially the question of terrorism, have resulted in a substantial number of debates about how the suspects of terror need to be handled under the law. Most of these debates revolve around the applicability of the principle of Habeas Corpus in the cases of terrorism. The writ of habeas corpus is a legal principle that requires a suspected criminal who has been arrested to be arraigned in court. Habeas corpus is based on the legal course that protects the freedom of individuals against the actions of states that are arbitrary in nature. However, there have been significant adjustments in this principle, more so the interpretation of the principle by different states when it comes to the issue of terrorism.

The question that needs to be asked concerns the way terrorists vary from other criminals and whether habeas corpus should be applied to the suspects of terror crimes in the same way it is applied to other forms of crimes in the society. The paper argues that the war on terror by the United States and its allies has been extended to the principle of habeas corpus as a way of enhancing the nature of the prosecution of terrorists and terror suspects, thus discouraging terror. The paper begins by giving an overview of the principle, particularly its historical development in the English and the United States contexts. This is followed by a presentation of real developments in the context of the applicability of the principle in the war on terrorism.

Overview and historical development of habeas corpus

As observed in the introductory note, habeas corpus is a legal principle that extends the rights and freedoms of individuals, especially those people who are under the custody of the law enforcement agencies. The principle of habeas corpus stipulates that a prisoner should be made to appear in a court of law to answer to the charges made against him. The custodian is forced to release the prisoner in case the court determines that the prisoner has been detained unlawfully.

The habeas corpus comes as a window for the prisoner to present a petition to the judges seeking to be allowed to enjoy liberty. Other individuals are given the chance to petition the courts on behalf of the prisoners who have been detained because the prisoners could have been held incommunicado. Habeas corpus is both rooted in the common law of the United Kingdom and the United States. However, the principle is predominant in England because it originated in the country (Shahidullah, 2012, p. 154).

Shahidullah (2012, p. 154) observes that the history of habeas corpus can be traced back to 1215 in Magna Carta where the Anglo-Saxon common law was developed. In the ancient English society, habeas corpus was considered to be the prerogative right of the King together with his courts. From the Magna Carta times, there was emphasis on the lawful judgment by both the peers and the laws that governed the land, thus it was a critical part of the unwritten law in ancient England. Habeas corpus was not practiced in other civil laws in the larger Europe then because of the fact that most of the civil law systems in the region embraced the Justinian law.

The principle of habeas corpus was incorporated into the common law of England in 1679. The parliament did this by passing a habeas corpus Act. This was a historic act that empowered the courts in England to issue the writ of habeas corpus. The principle was applicable even when court proceedings had stopped. Judges were penalized for disobeying the statute. The law became much more proactive, in spite of the hypocrisy that surrounded the practice of habeas corpus in the 17th century where the power of state in curtailing the liberty of individuals was put under check (Shahidullah 2012, p. 155).

According to Gregory and Independent Institute (2013, p. 89), the application of the writ of habeas corpus in the United States can be traced back to the Civil War. It is during this period that the principle was established in all the colonies of Britain in New England. There are two exceptions to the applicability of the habeas corpus in the U.S. Constitution. Firstly, the statute is not applicable if the case in question touches on invasion of the U.S. territories. The statute also does not apply when the issue at hand touches on public safety.

Hitches in the enforcement of the writ of habeas corpus in the United States began to be witnessed in the mid years of the 19th century when the then President Abraham Lincoln suspended the statute during the Civil War. Several questions and concerns in the field of jury were raised over the decision, resulting in the upholding of the statute by the Federal Court. The Court asserted that the statute could only be suspended from the Congress. According to the ruling of the Federal Court, the military did not have jurisdiction over the trial of civilians in the aftermath of the Civil War in the South (Latimer 2011, p. 41).

The writ of habeas corpus is interpreted in different ways in the contemporary world. Habeas Corpus is effective even after a suspect has been convicted. The law applies to suspects placed in police custody, the people who are waiting for trial, as well as people who have already been convicted to life imprisonment. The application of the statue largely depends on the way it is incorporated in the code of criminal judicial procedures. However, the most critical development in the legal field concerns the way states interpret the statute when it comes to the case of terrorism. An observation of the judicial proceedings in the United States since the worst incidence of terror in the United States in September 11, 2001 denotes the consideration of the policy on terror in judicial decisions involving terrorists (Fallon Jr. 2010, p. 353).

Habeas Corpus and the War on Terror

War and terror and change in security policy

According to Fallon Jr. (2010, p. 353), the war on terror has necessitated the development of a substantial number of statutes and policies as a way of dealing with terrorism. The Supreme Court of the United States has handled a bunch of cases involving the statute of habeas corpus since the rolling out of the war on terror in 2002. The question that is posed at this juncture concerns whether exemptions on habeas corpus have to be considered in issues involving terror suspects.

Serious judicial considerations have to be made if the exemptions have to be incorporated to enhance the war on terrorism. A substantial number of cases in the United States and several other countries involving the writ of habeas corpus for both non-citizens and citizens who were detained by the state devoid of judicial trials have been heard since the war on terror and its resultant policies took effect in 2002. Most of the cases involve people who the states argue that they were involved in terrorism (Fallon Jr. 2010, p. 353).

Individual liberty amidst the enforcement of antiterrorism policies

Katyal (2007, p. 1365) observes that it is difficult to embrace civil rights if a lot of changes are made to the way the writ of habeas corpus is applied in the contemporary world that is confronted by a lot of acts of terror. The manner in which countries respond to and treat the aliens or foreign individuals who are suspected of engaging in acts of terror is of great concern. Moving away from the complete enforcement of the statute due to the increase in acts of terror implies that foreign citizens are bound to be subjected to unjust treatment because of the perceived stereotypes.

Katyal (2007, p. 1366) cites the Military Commission Act that was developed after the September 2001 terrorist attacks in the United States as one of the impediments to the complete enforcement of habeas corpus, especially when it comes to the treatment of aliens suspected of engaging in terrorist acts. The MCA denies the writ of habeas corpus to aliens who are either suspected, or who have been convicted of crimes of terror.

Fallon Jr. (2010, p. 353) observes that each of the decisions that are made raises a given level of attention, thus fostering new developments. For instance, the judicial determinations that were made in two cases involving habeas corpus of noncitizens in the United States Rasul v. Bush and Hamdan v. Rumsfeld triggered the Congress to enact a law purporting to do away with the federal habeas corpus jurisdiction by reviewing the lawfulness behind the detention of non-citizens held by the United States.

The picture that was painted in the two cases denotes a struggle to increase the power of the state in matters to do with the civil liberty of people, especially the non-citizens of the United States, when it comes to terrorism. However, two factions arise: one that backs the granting of more powers to states when it comes to the prosecution of individuals who are convicted of crimes of terror. On the other hand, there is a faction that embraces the total observance of the rule of law and the granting of the writ of habeas corpus to all individuals, irrespective of being citizens or non-citizens (Fallon Jr. 2010, p. 354).

Judicial and executive standoff

It has been observed that the Supreme Court of the United States did not pay attention to its precedent principle In the Boumediene v. Bush case when it ruled the case by virtue of replacing a test based on sovereignty with a base that signified the functional factors as related to the functional clause. In the case, researchers note that the Court did not pay attention to two important factors: sovereignty and citizenship. One important thing that comes into the picture at this juncture is that the Supreme Court had not conferred the right of habeas corpus to any alien enemy of the United States prior to the case that was heard in 2008. Therefore, the fact that the Suspension Clause fully applied to the US military prison in Guantanamo Bay was a sigh of relief for the enemy combatants who could use the writ of habeas corpus to challenge their detention.

The court also argued that the Congress had neither suspended the right of habeas corpus for non-citizen combatants, nor offered a replacement statute to the writ. The ruling raised concerns among the proponents of the active policies on terror who argued that the ruling could promote the incidences of terror by way of offering a chance to the terrorists to petition the decisions of the state to detain them. However, other people see this as the right step in embracing constitutionalism in the global scene (“Boumediene v. Bush: The Supreme Court’s war on precedent damages the war on terror” 2009, p. 448).

The developments in the Boumediene v. Bush case raise the question of why the Bush administration chose to establish a military detention camp away from the United States. Researchers note that the choice to establish a military detention camp away from the United States to try the prisoners of war was a strategy by the United States to enhance its capacity in dealing with war and terror criminals by eliminating the judicial processes. The Bush administration assumed that the location of the prison meant that the United States’ courts could not have jurisdiction over what happened in distant locations.

However, the events happening in the prison have raised concerns about the way the Military Commission conducts its operations, thereby attracting debates on the issue of human rights in line with the functioning of the military prison in Guantanamo Bay (BBC News 2013, p. 1). Fallon Jr. and Meltzer (2007, p. 2032) argue that the court in the United States is justified in its continued efforts to embrace the judicial principle of habeas corpus. They argue that, in most of the cases, the courts have continued to go against the wishes of the states when it comes to the policies and the war on terrorism. They have insisted that the court acts within its jurisdictional domain.

The other important thing to note is that there is a clear standoff between the Congress and the executive concerning the steps and decisions of the executive to grant the right of habeas corpus to the detained terrorists. More often than not, the US Congress becomes divided along party lines when it comes to the enactment of laws and policies on terror and a balance between these policies and the spirit of constitutionalism (BBC News 2013, p. 1). As the main legislative organ, the Congress remains to be a key player in determining the level at which the rights and freedoms of individuals are embraced amidst the war on terror.

A substantial number of scholars observe that a number of limitations ought to be imposed on judicial adventurism when it comes to the war on terror. Such limitations are aimed at giving states more authority and force in addressing matters of terror. This is in line with the fact that a lot of states have prioritized the war on terror as the most important issue in international relations. What leads to the observation is that it is difficult to deal with the terrorists because of the way they enhance their activities.

The precepts of law are violated by the terror groups who often use guerrilla tactics and often direct their terror attacks against unarmed civilians, also referred to as non-combatants. In this case, non-combatants are subjected to the vulnerability that is posed by the activities of the terrorists (Terry 2008, p. 14). Therefore, the actions of a number of people who back the limitations are justified, according to a number of commentators on the matters of terrorism and international security

Classified security reports indicate that approximately 255 detainees are still held in prison since the inception of the US prison in the Guantanamo Bay. The Guantanamo Bay prison was established as a prison for people who are convicted of capital crimes, mostly terror crimes. This prison is largely seen as the exercise of authority in the fight against terror by the former United States President, George Bush. However, the continued existence of this court has invited an international outcry.

However, the question of rights remains central, irrespective of prospects of security as brought about by the war on terrorism (Jackson 2010, p. 264). The limitations of the writ of habeas corpus in the war against terror offer a chance to states to enhance their intelligence-gathering capacity to prevent further incidences of terror. Whether this is a good approach in the war on terror is an issue that is still being subjected to tests. However, the mounting protest against state detention of noncitizens is bound to result in shifts in the nature of limitations that are imposed on the writ of habeas corpus (Jackson 2010, p. 272).


It is apparent that the issues of terrorism and international security have raised concerns about the level at which the right of habeas corpus should be applied to people who are held in custody for claims of participation in terrorism. The argument is based on the fact that the nature and level of destruction that is caused by terror has resulted in the development of security policies and the enactment of laws to help in combating terrorism.

With the state seeking to be put at the center stage in the war against terror, the judicial arm continues to raise questions about the observance of the rights and liberty of individuals in relation to the writ of habeas corpus. The world is bound to continue witnessing a standoff between the judicial, legislative, and executive arms as the proper way of dealing with terrorism without infringing on the constitutional rights and liberty of individuals is sought.


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Terry, J. P. (2008). Habeas Corpus and the detention of enemy combatants in the war on terror. JFQ: Joint Force Quarterly, (48), 14-18.

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