The Power to detain you without notice Habeas Corpus The Power to detain you without notice

What is Habeas Corpus? Latin for “Have the body” -Meaning have the government say why theyre detaining you. Government must tell you why you are being detained, and you entrust you with due process of law. Article One, Section 9, clause 2, which demands that "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.“ Supreme Court has the power to hear cases regarding this manner.

History Ex Parte Milligan (1867) Indiana man who supports Confederate Army, ($$) is caught by union troops and tried in front of military tribunal. As Lincoln suspended Habeas Corpus during war. Question: Can citizens of the US be herd by military tribunals? Ruling: No. If courts are functioning, citizens must be herd by civilian courts.

Ex Parte Quirin Nazi trained combatants (some American citizens) are trained to come to US and destroy war making industries. Theyre caught, tried, and sentenced to death by military tribunal. Does this violate the right to habeas corpus? Ruling: No, the Court concluded that the conspirators, as spies without uniform whose purpose was sabotage, violated the law of war and were therefore unlawful enemy combatants. Enemy Combatants = Enemies of the state who are not specifically tied to military arms of another government.

Boumediene v Bush Individual suspected of terrorism is captured by US troops and sent to Gitmo Gitmo is a land leased by the US government from Cuba which serves as a military base and a prison to detain enemy combatants. Boumediene contends Gitmo is a part of US territory and is therefor entitled to certain constitutional rights, like habeas corpus.

Boumediene continued Is Gitmo a part of US Soil? Do these Combatants have rights? Court Answers yes to both

Majority Opinion Justice Kennedy Rules States government cannot determine where the constitution does and does not exist. “To hold the political branches have the power to switch the constitution on or off at will is quite another.” Which would lead to a government to which says “the president and the congress, not this court, say what the law is.” “in every particular sense, Guantanamo is not abroad; it is within the constant jurisdiction of the United States.” Gitmo is apart of US jurisdiction

Scalia dissent “The writ of Habeas Corpus does not, and never has, run in favor of aliens abroad; the Suspension Clause thus has no application, and the Courts intervention in this military matter is entirely ultra vires.” (beyond ones legal authority) Who do you agree with Kennedy or Scalia? Do combatants have rights? Is Gitmo constitutional? Should Gitmo exist?