Habeas Corpus and the War on Terror
Soon after the U.S. invasion of Afghanistan in 2001, the Bush administration developed a plan for holding and interrogating prisoners captured during the conflict. 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 to 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.
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