HABIOUS COURPUS

UNDER CONSTRUCTION... (be advised...)

Habeas corpus (IPA: /ˈheɪbiəs ˈkɔɹpəs/) (Latin: [We command] that you have the body)^[1] is the name of a legal action, or writ, through which a person can seek relief from unlawful detention of himself or another person. The writ of habeas corpus has historically been an important instrument for the safeguarding of individual freedom against arbitrary state action.

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 the custodian (such as a prison official) demanding that a prisoner be brought before the court, together with proof of authority, allowing the court to determine whether that custodian has lawful authority to hold that person, or, if not, the person should be released from custody. The prisoner, or another person on their behalf (for example, where the prisoner is being held incommunicado), may petition the court or an individual judge for a writ of habeas corpus.

The right to petition for a writ of habeas corpus has long been celebrated as the most efficient safeguard of the liberty of the subject. Albert Venn 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. In most civil law jurisdictions, comparable provisions exist, but they may not be called "habeas corpus."^[2] The reach of habeas corpus is currently being tested in the United States. Oral arguments on a consolidated Guantanamo Bay detention camp detainee habeas corpus petition, Al Odah v. United States were heard by the Supreme Court of the United States on December 5, 2007, and recently by HR 1955 The Violent Radicalization and Homegrown Terrorism Prevention Act of 2006. On June 12, 2008, the Supreme Court ruling in Boumediene v. Bush recognized habeas corpus rights for the Guantanamo prisoners.

The writ of habeas corpus is one of what are called the "extraordinary," "common law," or "prerogative writs," which were historically issued by the courts in the name of the monarch to control inferior courts and public authorities within the kingdom. The most common of the other such prerogative writs are quo warranto, prohibito, mandamus, procedendo, and certiorari. When the original 13 American Colonies declared independence and became a constitutional republic in which the people are the sovereign, any person, in the name of the people, acquired authority to initiate such writs.

The due process for such petitions is not simply civil or criminal, because they incorporate the presumption of nonauthority. The official who is the respondent has the burden to prove his authority to do or not do something. Failing this, the court must decide for the petitioner, who may be any person, not just an interested party. This differs from a motion in a civil process in which the movant must have standing, and bears the burden of proof.

[edit] Derivation and form

The right of habeas corpus is referred to in full in legal texts as habeas corpus ad subjiciendum or more rarely ad subjiciendum et recipiendum. The name derives from the operative words of the writ in Medieval Latin:

The word habeas in the writ is not in the indicative mood ("You have ..."), but in the subjunctive (specifically the volitive subjunctive): "We command that you have ...". The full name of the writ is often used to distinguish it from similar ancient writs:

• • Habeas corpus ad deliberandum et recipiendum, a writ for bringing an accused from a different county into a court in the place where a crime had been committed for purposes of trial, or more literally to return holding the body for purposes of “deliberation and receipt” of a decision;

  • Habeas corpus ad faciendum et recipiendum, also called habeas corpus cum causa, a writ of a superior court to a custodian to return with the body being held by the order of a lower court "with reasons", for the purpose of “receiving” the decision of the superior court and of “doing” what it ordered;

  • Habeas corpus ad prosequendum, a writ ordering return with a prisoner for the purpose of “prosecuting” him before the court;

  • Habeas corpus ad respondendum, a writ ordering return in order to allowing the prisoner to “answer” to new proceedings before the court;

  • Habeas corpus ad satisfaciendum, a writ ordering return with the body of a prisoner for “satisfaction” or execution of a judgment of the issuing court; and

  • Habeas corpus ad testificandum, a writ ordering return with the body of a prisoner for the purposes of “testifying”.

That the basic form of the writs of habeas corpus, now written in English, has changed little over the centuries can be seen from the following examples:

[edit] History of habeas corpus in England

Blackstone cites the first recorded usage of habeas corpus ad subjiciendum in 1305, during the reign of King Edward I. However, other writs were issued with the same effect as early as the reign of Henry II in the 12th century. Blackstone explained the basis of the writ, saying:

The procedure for the issuing of writs of habeas corpus was first codified by the Habeas Corpus Act 1679, following judicial rulings which had restricted the effectiveness of the writ. A previous act had been passed in 1640 to overturn a ruling that the command of the King was a sufficient answer to a petition of habeas corpus.

Then, as now, the writ of habeas corpus was issued by a superior court in the name of the Sovereign, and commanded the addressee (a lower court, sheriff, or private subject) to produce the prisoner before the Royal courts of law. A habeas corpus petition could be made by the prisoner himself or by a third party on his behalf and, as a result of the Habeas Corpus Acts, could be made regardless of whether the court was in session, by presenting the petition to a judge.

Since the 18th century the writ has also been used in cases of unlawful detention by private individuals, most famously in Somersett's Case (1771), where the black slave Somersett was ordered to be freed, the famous words being quoted (or misquoted, see Somersett's Case):

The privilege of habeas corpus has been suspended or restricted several times during English history, most recently during the 18th and 19th centuries. Although internment without trial has been authorised by statute since that time, for example during the two World Wars and the Troubles in Northern Ireland, the procedure of habeas corpus has in modern times always technically remained available to such internees. However, as habeas corpus is only a procedural device to examine the lawfulness of a prisoner's detention, so long as the detention was in accordance with an Act of Parliament, the petition for habeas corpus would be unsuccessful. Since the passage of the Human Rights Act 1998, the courts have been able to declare an Act of Parliament to be incompatible with the European Convention on Human Rights. However, such a declaration of incompatibility has no immediate legal effect until it is acted upon by the government.

The wording 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. However, rather than issuing the writ immediately and waiting for the return of the writ by the custodian, modern practice in England is for the original application to be followed by a hearing with both parties present to decide the legality of the detention, without any writ being issued. If the detention is held to be unlawful, the prisoner can usually then be released or bailed by order of the court without having to be produced before it. It is also possible for individuals held by the state to petition for judicial review, and individuals held by non-state entities to apply for an injunction.

[edit] United States

Main article: Habeas corpus in the United States

The United States Constitution specifically included the English common law procedure in the Suspension Clause, located in Article One, Section 9. It states:

The writ of habeas corpus ad subjiciendum is a civil, not criminal, ex parte proceeding in which a court inquires as to the legitimacy of a prisoner's custody. Typically, habeas corpus proceedings are to determine whether the court which imposed sentence on the defendant had jurisdiction and authority to do so, or whether the defendant's sentence has expired. Habeas corpus is also used as a legal avenue to challenge other types of custody such as pretrial detention or detention by the United States Bureau of Immigration and Customs Enforcement pursuant to a deportation proceeding.

[edit] Scope

The writ of Habeas Corpus was originally understood to apply only to those held in custody by officials of the Executive Branch of the federal government and not to those held by state governments, which independently afford habeas corpus pursuant to their respective constitutions and laws. The United States Congress granted all federal courts jurisdiction under 28 U.S.C. § 2241 to issue writs of habeas corpus to release prisoners held by any government entity within the country from custody in the following circumstances:

• • Is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or

  • Is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree of a court or judge of the United States; or

  • Is in custody in violation of the Constitution or laws or treaties of the United States; or

  • Being a citizen of a foreign state and domiciled therein is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, order or sanction of any foreign state, or under color thereof, the validity and effect of which depend upon the law of nations; or

  • It is necessary to bring said persons into court to testify or for trial.

In 1950s and 1960s, decisions by the Warren Supreme Court greatly expanded the use and scope of the federal writ, and the most publicized use of the writ of Habeas corpus in modern times has been to allow federal courts to review death penalty proceedings; however, far more non-capital habeas petitions are reviewed by the federal courts. In the last thirty years, decisions by the Burger and Rehnquist Courts have somewhat narrowed the writ, though the number of habeas petitions filed has continued to rise.

The Antiterrorism and Effective Death Penalty Act of 1996 further limited the use of the federal writ by imposing a one-year statute of limitations and dramatically increasing the federal judiciary's deference to decisions previously made in state court proceedings either on direct appeal from the conviction and sentence, or in a state court habeas corpus action and the associated second round of state appeal (both of which, in the usual case, occur before a federal habeas petition is filed).

[edit] Suspension during the Civil War and Reconstruction

On April 27, 1861, habeas corpus was suspended by President Abraham Lincoln in Maryland and parts of midwestern states, including southern Indiana during the American Civil War. Lincoln 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 the nation's capital, Washington, D.C., surrounded by hostile territory. Lincoln 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.

On March 3, 1863, Congress passed the Habeas Corpus Act of 1863. This bill suspended Habeas Corpus across the nation and was passed to rectify Taney's objections in Ex Parte Merryman, that Congress and not the President has the power to suspend Habeas Corpus.

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 it was unconstitutional for the President to try to convict citizens before military tribunals when civil courts were functioning. The trial of civilians by military tribunals is allowed only if civilian courts are closed, and if the area is within a theater of active military operations. This was one of the key Supreme Court cases of the American Civil War that dealt with wartime civil liberties and martial law.

This was one of the nine proclamations and orders that Lincoln issued. It was published in the Civil War Harper's Weekly, October 11, 1862.^[3]

In the early 1870s, President Ulysses S. 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.

[edit] Suspension during World War II and its aftermath

In 1942, the Supreme Court ruled in Ex parte Quirin that unlawful combatant saboteurs could be denied habeas corpus and tried by military commission, making a distinction between lawful and unlawful combatants. The writ was suspended in Hawaii during World War II, pursuant to a section of the Hawaiian Organic Act, when martial law was declared in Hawaii in the aftermath of the Japanese attack on Pearl Harbor. The period of martial law in Hawaii ended in October 1944, and the Organic Act's authorization of martial law was ruled not to include the power to close civilian courts in Duncan v. Kahanamoku, 327 U.S. 304 (1946).

The 1950 case Johnson v. Eisentrager denied access to habeas corpus for nonresident aliens captured and imprisoned abroad in a US-administered foreign court.

[edit] AEDPA

In 1996, following the Oklahoma City bombing, Congress passed (91-8-1 in the Senate, 293-133-7 in the House) and President Clinton signed into law the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The AEDPA was to "deter terrorism, provide justice for victims, provide for an effective death penalty, and for other purposes."

The AEDPA contained one of the few limitations on habeas corpus. For the first time, its Section 101 set a statute of limitations of one year following conviction for prisoners to seek the writ. It limits the power of federal judges to grant relief unless the state court's adjudication of the claim resulted in a decision that was (1) contrary to, or involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. It generally but not absolutely barred second or successive petitions, with several exceptions. Petitioners who had already filed a federal habeas petition were required to first secure authorization from the appropriate United States Court of Appeals, to ensure that such an exception was at least facially made out.

[edit] War on Terror

The November 13, 2001, Presidential Military Order gave the President of the United States the power to detain suspects, suspected of connection to terrorists or terrorism as an unlawful combatant. As such, it was asserted that a 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 United States Bill of Rights.

In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Supreme Court reaffirmed the right of United States citizens to seek writs of habeas corpus even when declared enemy combatants.

In Hamdan v. Rumsfeld, 548 U.S. 557 (2006), Salim Ahmed Hamdan petitioned for a writ of habeas corpus, challenging that the military commissions set up by the Bush administration to try detainees at Guantánamo Bay “violate both the Uniform Code of Military Justice and the four Geneva Conventions.” In a 5-3 ruling, the Supreme Court rejected Congress's attempts to strip the courts of jurisdiction over habeas corpus appeals by detainees at Guantánamo Bay. Congress had previously passed the Department of Defense Appropriations Act of 2006 which stated in Section 1005(e), “Procedures for Status Review of Detainees Outside the United States”:

“(1) 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 Guantánamo Bay, Cuba.

“(2) 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 29 September 2006, the House and Senate approved the Military Commissions Act of 2006 (MCA), a bill that would remove habeas corpus for any person determined to be an “unlawful enemy combatant" engaged in hostilities or having supported hostilities against the United States”^[4][5] by a vote of 65–34. (This was the result on the bill to approve the military trials for detainees; an amendment to remove the unavailability of habeas corpus failed 48–51.^[6]) President Bush signed the Military Commissions Act of 2006 into law on October 17, 2006. The declaration of a person as an "unlawful enemy combatant" is at the discretion of the US executive branch of the administration, and there is no right of appeal, with the result that this potentially eliminates habeas corpus for any non-citizen.

With the MCA'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.” §1005(e)(1), 119 Stat. 2742.

On 20 February 2007, the U.S. Court of Appeals for the District of Columbia Circuit upheld this provision of the MCA in a 2-1 decision of the Case Boumediene v. Bush. The Supreme Court let the Circuit Court's decision stand by refusing to hear the detainees' appeal. On June 29, 2007, the U.S. Supreme Court reversed its April 2007 decision and agreed to hear the appeals of Guantanamo detainees who are seeking habeas corpus review of their detentions.^[7]

Under the MCA, the law restricts habeas appeals for only those aliens 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 U.S. Court, including a review of whether the evidence warrants the determination. If the status is upheld, then their imprisonment is deemed lawful.

There is, however, no legal time limit which would force the government to provide a Combatant Status Review Tribunal (CSRT) hearing. Prisoners are legally prohibited from petitioning any court for any reason before a CSRT hearing takes place.

On January 17, 2007, Attorney General Gonzales asserted in Senate testimony that while habeas corpus is "one of our most cherished rights," the United States Constitution does not expressly guarantee habeas rights to United States residents or citizens.^[8] As such, the law could be extended to U.S. citizens and held if left unchecked.

As Robert Parry writes in the Baltimore Chronicle & Sentinel:

To date, there have been a number of confirmed cases in which non-American civilians have been incorrectly classified as enemy combatants.^[10]

On June 7, 2007, the Habeas Corpus Restoration Act of 2007 was approved by the Senate Judiciary Committee with an 11-8 vote split along party lines, with all but one Republican voting against it.^[11] Although the Act would restore statutory habeas corpus to enemy combatants, it would not overturn the provisions of the AEDPA which set a statute of limitations on habeas corpus claims from ordinary civilian federal and state prisoners.^{[citation needed]}

On June 11, 2007, a federal appeals court ruled that Ali Saleh Kahlah al-Marri, a legal resident of the United States, could not be detained indefinitely without charge. In a two-to-one ruling by the Fourth Circuit Court of Appeals, the Court held the President of the United States lacks legal authority to detain al-Marri without charge; all three judges ruled that al-Marri is entitled to traditional habeas corpus protections which give him the right to challenge his detainment in a U.S. Court.

On June 12, 2008, the United States Supreme Court ruled 5-4 in Boumediene v. Bush that terror suspects detained by the United States in Guantanamo Bay detainment camp have the right to seek a writ of habeas corpus in US Federal Court.^[12]

In July 2008, the Richmond-based 4th Circuit Court rules: "if properly designated an enemy combatant pursuant to the legal authority of the President, such persons may be detained without charge or criminal proceedings for the duration of the relevant hosilities."^[13]

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