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If There is an Act That Eliminated Habeas Corpus Can it be Legal?

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The act that eliminated habeas corpus following 9/11 was the Presidential Military Order given by Bush on November 13, 2001.

Forces were ordered to detain non-United States citizens believed to be in league with or aiding terrorism efforts and for them to be held as enemy combatants.

This made it possible for the accused to be held indefinitely without being allowed to see a lawyer, without receiving a hearing, and without violations being filed against him/her.

In the 2004 decision of Hadi vs. Rumsfeld the Supreme Court reiterated the protection of habeas corpus for U.S. citizens.

Hamden vs. Rumsfeld was another act eliminating habeas corpus (in the long run).

Hamden was being held at Guantanamo Bay in Cuba and filed a writ of habeas corpus in order to try and win his release and not be forced to go in front of the military commission Bush had set up to try detainees.

The decision inevitably kept all power in the hands of the appointed commission even though the Defense Appropriations Act of 2006 had clearly stated the same, that.

”Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba.”

The Military Commissions Act was also passed in 2006 to officially suspend the writ of habeas corpus in America for those considered to be enemy combatants.

Where the problem often lies is with the definition of enemy combatant.

The act later suffered under the decision rendered by the Supreme Court in the 2008 case of Boumediene v. Bush.

Efforts continue to turn back the effects of the act that eliminated habeas corpus since the War on Terrorism began.

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War on Terror

A key factor in legally being allowed to suppress habeas corpus is that the nation be undergoing a war at that time. Lincoln did so during the Civil War.

That could very well be why Bush is constantly referring to the current conflict in Iraq as the War on Terror.

With the semblance of a war established, it was initially not difficult to get suspects related to a terrorist investigation seen as enemy combatants.

This eliminated habeas corpus for a time and it would eventually be overturned by a Supreme Court decision.

The Military Commission Act of 2006 also was an act that eliminated habeas corpus for any and all aliens until it was deemed unconstitutional by the Supreme Court.

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Good Ole Gonzalez

Gonzalez proved he was not fit to be the Attorney General when he said that the writ of habeas corpus did not exist; only the clause regulating suppression of it.

The founders did leave much within the Constitution so maybe literally he is right; yet the law has been interpreted to include that which it can suppress.

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