Habeas Corpus and the Use of Military Tribunals Essay -- American Hist

Habeas Corpus and the Use of Military Tribunals In America Under the Threat of Terrorism Introduction It was on this date one hundred forty two years ago (April 25, 1861), that President Abraham Lincoln sent a letter to Lt. General Winfield Scott authorizing the suspension of â€Å"The Privilege of the Writ of Habeas Corpus† . Lincoln had been president for less than two months and was facing, what was up to that time and arguably may still be the greatest threat to the survival of the United States since the Founding Fathers launched this â€Å"Great Experiment†. Only eleven days earlier Major Robert Anderson, the commander of the federal garrison at Fort Sumter, South Carolina, had to surrender the fort to the Confederate Army. Lincoln was reluctant to issue such an order but had done so as he faced the very real possibility that the Maryland legislature would convene and â€Å"[t]ake action to arm the people of that state against the people of the United States† . Thus began the first of several occasions in our nation’s history where a president when faced with a â€Å"clear and present danger† to our national security has had to balance fulfilling his oath to â€Å"[p]reserve, protect and defend the Constitution†¦Ã¢â‚¬  with the â€Å"privilege† to have any detainment reviewed by a judge or magistrate of competent jurisdiction. Problem Statement How far may law enforcement officials go in compromising civil liberties to enhance national security? What does the Constitution say with respect to the suspension of the civil liberties in times of national emergency? How has the U.S. Supreme Court interpreted the constitution with respect to the suspension of habeas corpus? Few citizens would disagree that national security is a legitimate function of government. First and foremost, our national government is responsible for the protection of life, then liberty. The most ardent champions of the Bill of Rights concede that it would be foolish to treat civil liberties as inviolable when the lives of innocent thousands are at stake. U.S. Supreme Court Justice Robert H. Jackson, dissenting in a free speech case, gave these words of warning regarding civil liberties: â€Å"[T]he choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will c... ...lue – Freedom. Or it can be an indictment of our fear if we abrogate the liberties so much cherished and so dearly paid for. Bibliography Rehnquist, William H. All the Laws But One, New York: Alfred P. Knopf, 1998 Black’s Law Dictionary. Abridged Seventh Ed., p. 569, West Group, St. Paul, MN (2000) Garret, Buck "The Unconstitutionality of Time Limits Placed on The Great Writ," Prisoner of War in America - http://www.nov.org/garret.May97.htm Rembar, Charles. The Law of the Land: The Evolution of Our Legal System, pp.141 -156, Simon and Schuster, New York, (1981) Kleinfeld, Joshua. "The Union Lincoln Made", p. 24, History Today, Vol. 47, Nov 1997. Authorities and Cases Cited U.S. Constitution, Article 1,  § 9 Terminiello v. Chicago, 337 U.S. 1 (1949) Ex Parte Milligan, 71 U.S. 2 (1866) Ex Parte Quiran, 317 U.S. 1 (1942) Ashcroft, John. Statement to the Press re: The Capture of Jose Padilla, July 10, 2002 Padilla v. Bush, et al., 233 F. Supp. 2d 564 (S.D.N.Y. 2002) Padilla v. Rumsfeld. 233 F. Supp. 2d 564, No. 02 Civ. 4445, 2003 U.S. Dist. (S.D.N.Y. Mar. 11, 2003) Padilla v. Rumsfeld. 233 F. Supp. 2d 564, No. 02 Civ. 4445, 2003 U.S. Dist. (S.D.N.Y. Apr.9, 2003)