Habeas Corpus and the War on Terror

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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

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.

Before writing your initial post, review the assigned resources. To
easily access the resources from the Ashford University Library, please
see the table located in the Course Materials section.

The purpose of this forum is for you to share and discuss with
classmates your understanding of some of the academic literature about
this subject in order to help you write the Final Paper in the course.
Your initial post will have two parts. Fully respond to both parts of the question, and write in your own words.

  • In 150 to 200 words, summarize, in your own words, one of the academic articles required for this discussion (from Section 5 of
    the assigned resources). Select an article from the list that you think
    may be a source for your final essay. Read it carefully and try to
    understand the author’s main points that may be relevant to your final
    essay. First, give the full APA citation for the article. Then,
    summarize the relevant main points and explain the author’s reasoning as
    you understand it. At the end of your summary, ask one question about a
    specific point in the article that you do not understand and would like
    some help with (refer to a page number).  
  • In 50 to 75 words, state what you believe the
    thesis of your Final Paper will be. State the thesis as clearly and
    fully as you can. Draw upon what you have learned from all the required
    resources you reviewed for this discussion. While you can change your
    mind about your thesis when you actually write the Final Paper, use this
    discussion forum as a serious opportunity to try out a thesis and
    receive feedback from your peers.

By Day 7, respond to at least two of your classmates’
initial posts. Your peer responses each must be at least 75 words. They
must demonstrate critical thinking. Offer ideas about the question your
peer asks in his or her initial post. Give your peers feedback about
their proposed thesis.

Sutton, J. (2012, April 19). Two Guantanamo Uighur  prisoners head to El Salvador. Chicago Tribune News.  Retrieved from http://www.chicagotribune.com/news/sns-rt-us-usa-guantanamo-salvadorbre83i1ha-20120419,0,1170410.story


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