The American Usage and History of Habeas Corpus

In common law countries, habeas corpus, Latin for "you [should] have the body", is the name of a legal instrument or writ by means of which detainees can seek release from unlawful imprisonment. A writ of habeas corpus is a court order addressed to a prison official (or other custodian) ordering that a detainee be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he or she should be released from custody. The writ of habeas corpus in common law countries is an important instrument for the safeguarding of individual freedom against arbitrary state action.

The recorded history of the usage of habeas corpus dates back to 1305 during the reign of King Edward I, although other writs were issued with the same effect as early as the reign of Henry II in the 12th century. The framers of the United States Constitution considered it important enough to include it in Article One, section nine:

"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."
In the United States, the writ of habeas corpus is a civil (as opposed to criminal) proceeding in which the court inquires as to the legitimacy of a prisoner's custody. Typically, habeas corpus proceedings investigate whether a criminal trial was conducted fairly and constitutionally after the criminal appellate process has been exhausted. Habeas corpus is also used as a legal avenue to challenge other types of custody such as pretrial detention or detention by the Bureau of Immigration and Naturalization pursuant to a deportation proceeding.

Habeas corpus was suspended on April 27, 1861, during the 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 border slave state of Maryland would secede from the Union, leaving Washington DC surrounded by hostile territory. He was also motivated by requests from 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 the US Circuit Court for the District of Maryland, then presided over by Supreme Court Chief Justice Roger Taney, who ruled in the case of Ex Parte Merryman, "That the president cannot suspend the privilege of the writ of habeas corpus, nor authorize a military officer to do it," and, "That a military officer has no right to arrest and detain a person not subject to the rules and articles of war... except in aid of the judicial authority, and subject to its control." Lincoln simply 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. The Supreme Court decided that the suspension of the writ did not empower the President to try and convict civilians before military tribunals. The trial of civilians by military tribunals is allowed only if civilian courts are closed. This case, Ex Parte Milligan, was one of the key Supreme Court cases of the 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 the 1871 Ku Klux Klan Act.

The November 13, 2001 Presidential Military Order gave the President of the United States the power to detain anyone suspected of connection to terrorists or terrorism as enemy combatants. As such, that person could 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 contended that these provisions were in direct opposition to habeas corpus, and the Bill of Rights. The case of Hamdi v. Rumsfeld re-confirmed the right of US citizens to habeas corpus even when declared an enemy combatant. The issue of aliens has been more complicated. While some argue that habeas corpus does not properly apply to noncitizens, US courts have also ruled that many rights under the Bill of Rights and the Fourteenth Amendment apply to "all persons", not just US citizens. In the case of Hamdan v. Rumsfeld, argued before the Supreme Court in March of this year, 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 a court-martial convened under the Uniform Code of Military Justice. On June 29 of this year, in a five to three ruling the Supreme Court 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, which took effect on December 30, 2005:
"Except as provided in section 1005 of the Detainee Treatment Act of 2005, no 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."
Section 1005 of the Detainee Treatment Act states:
"The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on any claims with respect to an alien under this paragraph shall be limited to the consideration of whether the status determination ... was consistent with the standards and procedures specified by the Secretary of Defense for Combatant Status Review Tribunals (including the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence and allowing a rebuttable presumption in favor of the Government's evidence), and to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States."
On September 29 of this year, Congress approved the Military Commissions Act of 2006, a bill which would suspend habeas corpus for any alien (noncitizen) determined to be an "unlawful enemy combatant engaged in hostilities or having supported hostilities against the United States." President Bush signed the Military Commissions Act of 2006 into law on October 17.

With the Military Commissions Act's passage, the law altered the language from "alien detained... at Guantánamo Bay":
"Except as provided in section 1005 of the Detainee Treatment Act of 2005, no 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 United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."
Under the Military Commissions Act, the law restricts habeas appeals for only those detained as enemy combatants, or awaiting such determination. Left unchanged is the provision that, after such determination is made, it is subject to appeal in US Court, including a review of whether the evidence warrants the determination. If the status is upheld, then their imprisonment is deemed lawful; if not, then the government can change the prisoner's status to something else, at which point the habeas restrictions no longer apply.

There is, however, no legal time limit which would force the government to provide a Combatant Status Review Tribunal hearing. Prisoners are legally prohibited from petitioning any court for any reason before a Combatant Status Review Tribunal hearing takes place. It has been pointed out that the government can thus detain any noncitizen for any length of time, without habeas or any other appeal, by delaying the Combatant Status Review Tribunal hearing indefinitely.

Posted at Friday, October 20, 2006
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