Soon after the U.S. invasion of Afghanistan in 2001, the Bush administration developed a plan for holding and interrogating captured prisoners. 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 who can 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.
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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. Writing the Final Paper in this course will prepare you to participate intelligently as a citizen in this ongoing debate.
Write an essay about the right of habeas corpus in the context of the war on terror. Your essay should address the following subtopics:
- Explain the historical evolution of habeas corpus, including its English and American traditions. The explanation of its evolution within the American tradition should include the general meaning of the right of habeas corpus in the U.S. Constitution and its relationship to the protection of other civil liberties.
- Provide examples from U.S. history of the suspension of habeas corpus and their applicability to the present.
- Analyze the relevance of habeas corpus to the contemporary U.S. situation during the war on terror, especially with respect to persons characterized by as enemy combatants or illegal combatants.
- Explain the U.S. Supreme Court’s interpretation of the right of habeas corpus with respect to enemy combatants or illegal combatants (i.e., the views of the five justices making up the majority in Boumediene v. Bush as well as the views of the four dissenting justices).
- Evaluate a minimum of four perspectives on this topic expressed by justices of the Supreme Court, leaders in other branches of government, and commentators in both the academic and popular media. Your evaluation should consider perspectives on the following topics as they relate to habeas corpus:
- The role of the President as Commander-in-Chief.
- The role of Congress in determining when habeas corpus can be suspended.
- The role of the Supreme Court in protecting civil liberties, including the judicial philosophy which should guide the Court in this role, and
- In your evaluation, you should also include your personal philosophy, values, or ideology about the balance between civil liberties and national security in the context of an unending war on terror.
Follow these requirements when writing the Final Paper:
- The body of the paper (excluding the title page and reference page) must be at least 1,500 words long.
- The paper must start with a short introductory paragraph which includes a clear thesis statement. The thesis statement must tell readers what the essay will demonstrate.
- The paper must end with a short paragraph that states a conclusion. The conclusion and thesis must be consistent.
- The paper must logically develop the thesis in a way that leads to the conclusion, and that development must be supported by facts, fully explained concepts and assertions, and persuasive reasoning.
- The paper must address all subtopics outlined above. At least 20% of the essay must focus on subtopic five, listed above (your evaluation of perspectives on the topic).
- Your paper must cite at least three academic articles (excluding the course textbook) and at least four other kinds of sources (e.g., Supreme Court opinions, magazine or newspaper articles, the course textbook, and reliable websites or videos).
- Use your own words. While brief quotes from sources may be used, altogether the total amount of quoted text must be less than five percent of the body of your paper.
- When you use someone else’s words, they must be enclosed in quotation marks followed by an APA in-text short citation (author, year, and page) to your source. The in-text citation must correspond to a full APA citation for the source on the reference page at the end of the essay.
- When you express in your own words someone else’s ideas, arguments or facts, your statement must be followed by an APA in-text short citation (author, year, and page) to your source. The in-text citation must correspond to a full APA citation for the source in the reference page.
- The form of the title page, the body pages, and the reference page must comply with APA style. Additionally, the title page must include the course number and name, the instructor’s name, and the date submitted.
- The paper must use logical paragraph and sentence transitions, complete and clear sentences, and correct grammar, spelling, and punctuation.
For this paper you need to do research in peer-reviewed journals or other sources that are considered to have reliable information. In addition to your required course text, you need at least seven scholarly sources, three of which must be peer-reviewed journal articles from the Ashford Online Library.
Academic research papers must meet university level standards of quality. What constitutes quality, academic research?
- Primary sources written by experts in the field of study
- Secondary sources supported by research in primary sources
- Credible sources (experts in the area of study)
- Relevant research (materials are pertinent to the area of study)
- Peer-reviewed journal articles (journal articles reviewed by recognized experts in the relevant field of study).
- Educational and government websites (those ending with a web URL suffix of .edu or .gov) may be appropriate in some cases but should be evaluated carefully.
Please visit the Academic Research section on your course homepage (accessible through the Student Responsibilities and Policies tab on the left navigation toolbar) to review what types of materials are not acceptable for academic, university level research.
The paper must be at least 1,500 words in length and formatted according to APA style. Cite your sources within the text of your paper and on the reference page.