Running Head: BODY

You Have the Body Alan L. Schroeder POL 201 Instructor Farrell Binder August 26th, 2012

BODY Literally interpreted, Article I, Section 9 of the U.S. Constitution would allow even foreign rebels the right to a timely trial. The Constitution states that Habeas Corpus could only

be suspended in times of 'Invasion' or 'Rebellion', and that only applies to citizens of this country. One can only logically infer that enemies of the 'Global War on Terror' would have to be seen as, and considered, 'political rebels' here in the United States if they were to be held without trial. This classification either equates Global Terrorism, with an American war, or so liberally interprets our Constitution, as to give one country's government power to police the globe and the absence of local attacks both before, and since the isolated incidents of Sept. 11, 2001, do not lend to the definition of an 'Invasion' either. Did the Framers of the Constitution ever imagine a situation like the terrorist attacks of 9/11? Can the government avoid the Constitutions rule by operating outside of our countrys borders? If America does not formally declare war on any country, are they truly at war? Can any hostile persons, anywhere in the world, be detained and declared enemy combatants if no enemy is defined? The researcher will attempt to discuss these questions by delving into the doctrine of Habeas Corpus, as it was originated, and as it is applied (or not) in America today. The basic premise behind the Writ of Habeas Corpus is described as , that you cannot be held against your will without just cause. To put it another way, you cannot be jailed if there are no charges against you(Writ, n.d.). The government does not have the power to hold a person for no reason and the Writ, secured the provision of Magna Carta, that no freeman be imprisoned save by the judgment of a jury of his peers (Lobban&Halliday, 2011). Some say it originated with phrasing in King Johns Magna Carta in 1215 whereby, No Freeman shall be taken or imprisoned, or be disseized of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him,

BODY nor condemn him, but by lawful judgment of his Peers, or by the Law of the land (Turner,

2003). King John wanted to know why?, when his subjects were being detained for any reason. For what ultimate end (whether beneficent or tyrannical) no one may know, but after all they were his property and he was king. What eventually evolved into the Habeas Corpus principle has been very popular in many modern democracies around the world today. Countries including Germany, India, Canada and Australia have all implemented Habeas Corpus in their governments. From 1776-2001, that is for 225 years, the principle has been upheld in America. It was a most-basic right and may even have been taken for granted my many modern American citizens. In fact: Throughout US history, including the Civil War and WW I and II, habeas corpus was respected and defended by the courts. Yet the terrorist attacks of 9/11, and the Bush administration's decision to incarcerate enemy combatants at Guantanamo Bay without trial, tested the scope and commitment of this constitutional right. (Schultz, 2011) With the Bush Administrations declaration of War on Terror, they cleverly redefined national security methods and introduced creative interpretive solutions to aid the fight. Subjects that were declared enemy combatants in this global war on terror were now seen as direct enemies of the United States. People detained at Guantanamo Bay and other, secret off-shore prisons, were denied the privilege of trial by jury and in most cases even justification for incarceration. Then came, the complicated and groundbreaking Supreme Court decision process, in Boumethene v. Bush, to grant Guantanamo detainees the ability to challenge their detention by applying for a writ of habeas corpus in federal court (Pond, 2009). The Boumethene petitioners

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were all foreign nationals, from Afghanistan to Bosnia, who professed no ties with the Taliban or Al Qaeda, and were all found and declared to be enemy combatants by a military tribunal. While offering a reprieve, the decision also sparked some controversy based on its disregard of the normal states exhaustion policies. Chief Justice Roberts, found it remarkable that this Court [did] not require petitioners to exhaust their remedies under the statute; [nor] wait to see whether those remedies [would] prove sufficient to protect petitioners' rights(Pond, 2009). This exhaustion doctrine is usually upheld to assure that the timing is right, with regard to the circumstances, for review of the petition. First off, the Court found that the enemy combatant label, was not, in and of itself, a bar to habeas corpus relief. Turning to the question of detainment outside of the United States, the Court found no ready equivalent to Guantanamo Bay in the common law record (Pond, 2009). Because this was unprecedented, the court first had to determine whether the United States had any legal sovereignty over Guantanamo. When none could be established, the question then became one of whether the Government would obey a Federal writ (if issued to GITMO detainees), if they considered the area outside of Constitutional jurisdiction. It makes sense that, if a person says that the rules do not apply to them, that granting the opposing team a new rule that would tip the game in their favor would make no difference? For example, even a simple rule of Side B wins no matter what would not apply, if Side A refuses to operate within the guidelines of the rule set. The president of the United States does not handle the declaration of our countries wars. The text American Government writes this about the presidents role in declaring war:

BODY The Constitution states that only Congress has the authority to declare war, but it also obligates the president to preserve and protect the Constitution. This obligation has led many presidents to engage in military acts without congressional authorization or a formal declaration of war. (Levin-Waldman, 2012)

Obama recently declared our aid in ousting Moammar Gadhafi in Libya humanitarian relief in order to bypass congressional involvement. Similarly Bush declared that America was joining an international War on Terror against terrorists and regimes across the globe that posed a threat to America and its allies. By doing this the Commander-In-Chief could equate global threats, with the Invasion (referred to in Article 1 Section 9 of the Constitution) of America. The only judicial philosophy that makes sense, and is in harmony with this researchers personal values, is Judicial Activism. The text American Government says that this: refers to a school of thought that says that the role of judges is to protect individual rights and liberties, and that when legislative bodies act in ways that violate these liberties, judges are obligated to strike down those actions as being in violation of the Constitution. (Levin-Waldman, 2012) If nothing else, the individual rights and liberties of American citizens should remain a priority in the legislative branch, but especially at the top levels of the judicial system. In the interest of national security, in 2001, the United States passed into law the PATRIOT ACT. The purpose, written in the Bill, was To deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes(Congress, 2001). These other purposes turned out to include such

BODY controversial topics as incidentally intercepting private communications of American citizens, through wiretaps, or other electronic surveillance.

Also since October 25, 1994, the Communications Assistance for Law Enforcement Act (CALEA) required telecommunications and broadband Internet service providers to install government back doors to facilitate eavesdropping. CALEA was intended to preserve the ability of law enforcement agencies to conduct electronic surveillance by requiring that telecommunications carriers and manufacturers of telecommunications equipment modify and design their equipment, facilities, and services to ensure that they have the necessary surveillance capabilities (FCC, 1994). The legal groundwork for this type of blatant disregard for American citizen privacy is already in place. This researcher posits that any and all Internet communication is subject to both the CALEA and the PATRIOT Act, because all Internet traffic data is layered on a backbone of telecommunications hardware at some point along its path. In the aftermath of 9/11, the United States started implementing a series of domestic efforts to prevent other attacks. The Patriot Act, gave law enforcement greater leeway to search electronic communication of U.S. citizens. A Terrorist Finance Tracking Program aimed to create a money trail between sources of terrorist funding and the groups. The National Security Entry-Exit Registration System , Total Information Awareness program and the secret Office of Strategic Influence all were implemented and claimed to help prevent the 10-odd attacks that have occurred in America since the terrorist attacks of 9/11.

BODY This researcher believes that above all else, most of these programs are insidious

encroachments on U.S. citizen privacy. Using political strategies to undermine the basic rights of privacy, and even time-honored policies such as the Writ of Habeas Corpus, is not an upright strategy of a modern democracy. The Global War on Terror was a creative invention of the Bush administration and an attempt to play outside the political rules that America was founded on.

BODY References: 107th Congress. (2001). Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001. Text of H.R. 3162 (107th). Retrieved from http://www.govtrack.us/congress/bills/107/hr3162/text Federal Communications Commission. (1994). Communications Assistance for Law Enforcement Act (CALEA). Retrieved from http://transition.fcc.gov/calea/ Levin-Waldman, O. M. (2012). American government. San Diego, CA: Bridgepoint Education, Inc. Lobban, M., & Halliday, P. D. (2011). Habeas corpus: From England to Empire. International Journal of Law in Context, 7(2), 257-269. doi: 10.1017/S1744552311000085 Pond, B.C. (2009). Boumediene v. bush: Habeas corpus, exhaustion, and the special circumstances exception. Brigham Young University Law Review, 2009(6), 1907-1933. Retrieved from http://search.proquest.com/docview/194363601?accountid=32521 Schultz, D. (2011). Habeas corpus after 9/11: Confronting america's new global detention system. Choice, 48(11), 2190-2191. Retrieved from http://search.proquest.com/docview/877038974?accountid=32521 Turner, R. V. (2003). Magna Carta. Pearson PLC: London, UK, p162 & 219. Writ of Habeas Corpus. (n.d.). Glossary of the U.S. Constitution. Retrieved from http://www.usconstitution.net/glossary.html#HABCOR