法律英语：78 The Writ of Habeas Corpus

by Michael W. Flynn

 

First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed 1 to practice in your jurisdiction 2.  Further, I do not intend to create an attorney-client relationship with any listener.

Today’s topic is habeas corpus. Ken 3 from Worcester, Massachusetts wrote:

Could you do a podcast primer on habeas corpus: what it is, why it's important, and under what circumstances it can be denied?

The writ 4 of habeas corpus is considered by many to be the most basic and fundamental protection that citizens have against the state. It preserves our ability to force the government to show that it has the right to detain us. It is important today due to the current administration’s stance on who can apply for the writ, and who cannot.

Habeas corpus is Latin for “we command that you have the body.” Also known as “The Great Writ,” a writ of habeas corpus ad subjiciendum is a summons with the force of a court order addressed to a custodian 5, i.e. a prison, demanding that a prisoner be brought before the court, together with proof of authority, allowing the court to determine whether that custodian has lawful 6 authority to hold that person, or, if not, the person should be released from custody 7. The prisoner, or another person on his behalf, may petition the court or an individual judge for a writ of habeas corpus.

This procedure has its roots in England, and similar tools were used as early as the 12th Century. The general idea behind the writ was embodied 8 in the Magna Carta, which prohibited imprisonment 9 or seizure 10 of land “except by lawful judgment 11.”

Article I, Section 9 of the United States Constitution, sometimes called the Suspension Clause, provides 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.” 

Over the years, the writ of habeas corpus has generally been used as a tool by those imprisoned 12 to force the government to show to a neutral judge why it has the jurisdiction and authority to detain someone. It is important to note that, a prisoner seeking a writ of habeas corpus is not asking the federal reviewing court to determine his guilt 13 or innocence 14, but merely whether his incarceration 15 is supported by the law. In state court convictions, only a fundamental constitutional error in a trial will compel the granting of the great writ.

That tool, as expressed in the Constitution, can be suspended in certain situations. For example, General Andrew Jackson declared martial 16 law in New Orleans during the War of 1812 and arrested people. A federal court judge issued a writ of habeas corpus, but Jackson blocked their release. Jackson was fined $1000 for contempt of court after refusing to produce the prisoners. Incidentally, Jackson lobbied Congress for a refund 17 of the $1000 fine he paid, which was granted in 1844.

During the Civil War, President Lincoln suspended habeas corpus in areas where militia 18 activity and rioting threatened civil society. In 1864, several men were accused of planning to steal Union Weapons, and they were convicted and sentenced to die in military courts. However, the executions were not set until 1865, when the civil courts had been restored. The Supreme 19 Court ruled that that writ of habeas corpus could not be suspended when the civil courts were functioning.

Two main court cases in 1942 and 1950 set the stage for today’s debate over who can access habeas corpus. In 1942, the Supreme Court ruled in that unlawful combatant saboteurs could be denied habeas corpus and tried by military commission, making a distinction between lawful and unlawful combatants. In 1950, the Court denied access to habeas corpus for nonresident aliens captured and imprisoned abroad in a US-administered foreign court.

Today, the debate centers around those people imprisoned as “enemy combatants” held at Guantanamo Bay. The Bush administration previously 20 utilized 21 statutes 22 passed by Congress to detain, indefinitely, and without any review, those defendants 23 who were deemed “enemy combatants.” However, in 2004, the Supreme Court ruled that U.S. Citizens still maintained the right to habeas corpus, and in 2006, the Court held that the military tribunals set up by the administration were unconstitutional. Today, the fate of those held at Guantanamo, and those labeled as enemy combatants is unclear.

The main reason that habeas corpus is important today is the same reason that it has been important for its 800 year history: it prevents the government from imprisoning 24 you without proving that it has some reason. Without habeas corpus, the government might be free to throw you in jail for no reason, and then not have to answer for it. It fundamentally requires the state to justify 25 its actions. Its current application to detainees, enemy combatants, prisoners, however classified still asks the question of, what do we want the government to be able to do without justifying 26 its actions in a court, and when can it do so?

That question cannot be answered in this short podcast, and will not be answered definitively 27 for years to come. The Supreme Court currently has several cases on this issue, and all we can do is wait and see what happens.  

Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful Life.  Be sure to check out all the excellent Quick and Dirty Tips podcasts at QuickAndDirtyTips.com.

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