Habeas corpus: a review.

Definition and brief history:

Known as the "Great Writ", the writ of habeas corpus ad subjiciendum is a legal proceeding in which an individual held in custody can challenge the propriety of that custody under the law. The prisoner, or some other person on his behalf (for example, where the prisoner is being held incommunicado), may petition the court or an individual judge for a writ of habeas corpus.

Although the form of the writ of habeas corpus implies that the prisoner is brought to the court in order for the legality of the imprisonment to be examined, modern practice is to have a hearing with both parties present on whether the writ should issue, rather than issuing the writ immediately and waiting for the return of the writ by the addressee before the legality of the detention is examined. The prisoner can then be released or *bailed* by order of the court without having to be produced before it.

The right of habeas corpus—or rather, the right to petition for the writ—has long been celebrated as the most efficient safeguard of the liberty of the subject. Dicey wrote that the Habeas Corpus Acts "declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty". In most countries, however, the procedure of habeas corpus can be suspended in time of national emergency.

...This procedure, part of English common law, was considered important enough to be specifically mentioned in the United States Constitution, which says, "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." (Article One, section nine).


Which, yes, that has happened in the U.S. before this administration. Specifically:

Habeas corpus was suspended on April 27, 1861, during the American Civil War by President Lincoln in Maryland and parts of midwestern states, including southern Indiana. He did so in response to riots, local militia actions and the threat that the Southern slave state of Maryland would secede from the Union leaving the nation's capital, Washington, D.C., in the south. He was also motivated by requests by generals to set up military courts to rein in "Copperheads" or Peace Democrats, and those in the Union who supported the Confederate cause. His action was challenged in court and overturned by the U.S. Circuit Court in Maryland (led by Supreme Court Chief Justice Roger B. Taney) in Ex Parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861). Lincoln ignored Taney's order. In the Confederacy, Jefferson Davis also suspended habeas corpus and imposed martial law. This was in part to maintain order and spur industrial growth in the South to compensate for the economic loss inflicted by its secession.

In 1864, Lambdin P. Milligan and four others were accused of planning to steal Union weapons and invade Union prisoner-of-war camps and were sentenced to hang by a military court. However, their execution was not set until May 1865, so they were able to argue the case after the Civil War. In Ex Parte Milligan 71 U.S. 2 1866 the Supreme Court of the United States decided that the suspension of the writ did not empower the President to try and convict citizens before military tribunals. The trial of civilians by military tribunals is allowed only if civilian courts are closed. This was one of the key Supreme Court Cases of the American Civil War that dealt with wartime civil liberties and martial law.

In the early 1870s, President Grant suspended habeas corpus in nine counties in South Carolina, as part of federal civil rights action against the Ku Klux Klan under the 1870 Force Act and 1871 Ku Klux Klan Act.

And after that particular very specific injunction back in the 1870's, we leap to:

The November 13, 2001 Presidential Military Order gives the President of the United States the power to detain certain non-citizens suspected of connection to terrorists or terrorism as enemy combatants. As such, that person can be held indefinitely, without charges being filed against him or her, without a court hearing, and without entitlement to a legal consultant.

Many legal and constitutional scholars contend that these provisions are in direct opposition to habeas corpus, and the United States Bill of Rights. Specifically, American citizens declared enemy combatants by the President may be denied their constitutional rights as set forth in Amendments 4, 5, 6 and 8. One recent example is the José Padilla case. In the case of Hamdan v. Rumsfeld, argued before the United States Supreme Court in March 2006, Salim Ahmed Hamdan petitioned for a writ of habeas corpus, challenging the lawfulness of Secretary of Defense Donald Rumsfeld's plan to try him for alleged war crimes before a military commission convened under special orders issued by the President of the United States, rather than before a court-martial convened under the Uniform Code of Military Justice. On June 29, 2006, in a 5-3 ruling the Supreme Court of the United States rejected Congress's attempts to strip the court of jurisdiction over habeas corpus appeals by detainees at Guantánamo Bay, although Congress had previously passed the Detainee Treatment Act (DTA), which took effect on December 30, 2005:

"[N]o 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." §1005(e)(1), 119 Stat. 2742.

That was then. This is now: (as of this past Friday, to be precise):

After 800 years, habeas corpus is compromised.

But from the ballyhooed prisoner "compromise" negotiated with a few rebel Republican senators, the change is actually bigger than that: It's a different world since 1215. Not satisfied with cutting up the Constitution, the administration is now mangling the Magna Carta.

The compromise bill takes away from federal courts the right to hear habeas corpus suits from "unlawful enemy combatants" — such as the 400-plus now held at Guantanamo. In other words, although being held in U.S. custody on U.S. territory, prisoners would have no right to argue in court that there was no reason to hold them.
...


"And it is emblazoned in the Constitution specifically that it can be suspended only in time of insurrection or invasion — rebellion or invasion. And we don't have either of those present now."

...

The administration has a priority of limiting court oversight of its treatment of prisoners because it keeps embarrassingly losing cases. Most recently, the Hamdan case, filed by a Guantanamo prisoner, led to the Supreme Court striking down the proposed rules for military tribunals, on the grounds that the tribunals had no congressional authority and the administration was just making things up as it went along. Lt. Cmdr. Charles Swift, the Navy lawyer who represented Hamdan, explained, "The legislation introduced by the president will see to it that no one else will be able to do what I did."

There's a 1297 edition of the Magna Carta in the National Archives. There's even a replica, printed in gold, right in the middle of the Capitol. Senators could send an intern down to read it.

And the details get worse. The great triumph of the compromise is supposed to be a ban on the use of torture on prisoners — although the White House says that it will interpret just where the lines are. But without access to courts, it's not going to be easy to enforce that.

And according to Tuesday's Washington Post, the original compromise has now been further compromised, allowing for indefinite detention, without access to courts, of anyone who "has engaged in hostilities or has purposefully and materially supported hostilities against the United States." Writes the Post's R. Jeffrey Smith, "The definition applies to foreigners living inside or outside the United States and does not rule out the possibility of designating a U.S. citizen as an unlawful combatant."

So, the new compromise not only excludes unlawful combatants from habeas corpus but considerably expands the people who could qualify as unlawful combatants — and be subject to imprisonment at the pleasure of the president.





Questions? Comments?