The Great Writ Then and Now
OCTOBER 23, 2009 by WENDY MCELROY
Habeas corpus is a rarely invoked legal writ, or document, widely considered to be the cornerstone of individual liberty. Also known as The Great Writ, habeas corpus (ad subjiciendum) is Latin for “you may have the body” (subject to examination). The writ is a civil action with the force of a court order, which requires a custodian, usually the government, to produce a detainee.
The purpose is not to determine the detainee’s innocence or guilt but to evaluate whether the detention itself is lawful; that is, does it satisfy the standard set by the law of the land? If the imprisonment is judged to be valid, the person must submit to a trial or whatever procedure is prescribed. If the imprisonment is invalid, the person must be released. In short, the government cannot imprison you without just cause and due process.
Although habeas corpus is not commonly raised as a legal challenge, it has been mentioned with some frequency in recent issues—from the prison at Guantanamo Bay, Cuba, to the detention of illegal immigrants to the FLDS ranch raid by Texas child-welfare services. Critics of these government actions claim that they erode the principle of habeas corpus. The word “unconstitutional” is often used because the Constitution is the legal standard that an imprisonment must ultimately satisfy in the United States.
In the course of discussing such events, theoretical questions about The Great Writ arise. Is it a natural right or a privilege granted by government? If habeas corpus is a privilege, does government have an obligation to extend it to all people regardless of citizenship? If it is extended only to citizens, are there circumstances through which a citizen can lose the “privilege”? Purely practical questions arise as well. For example, do constitutional constraints bind only the federal government and not the states?
Apart from rights theory and practical considerations, another aspect of habeas corpus deserves attention because it explains why the writ is invoked so often in debate though so rarely in court: namely, its psychological impact. Habeas corpus is a powerful concept that evokes strong emotions. This is largely because it is viewed as a litmus test for whether a government is a dictatorship. In his article “Habeas Corpus: The Lynchpin of Freedom,” Jacob Hornberger of the Future of Freedom Foundation explains how habeas corpus is the enforcement arm of all other rights. Using First Amendment guarantees of free speech as an example, he writes,
[H]ow is that provision enforced? Editors, critics, and protestors would be languishing in some military detention center. . . .What good would it do to point out that people have the constitutional right to speak their mind, criticize government policy, and petition the government for redress of grievances? The president and the military would be in charge. . . . The doors to the cells would remain locked. The prisoners would be unconditionally subject to whatever treatment their jailers wished to impose. The prisoners would be prohibited from going to court to complain or to seek redress. That’s where habeas corpus . . . comes in.
Michael Zander, emeritus professor of law at the London School of Economics, expands on the psychological importance of the Great Writ: “Habeas corpus has a mythical status. . . . In reality it is no longer of great practical significance as there are today very few habeas corpus applications, but it still represents the fundamental principle that unlawful detention can be challenged by immediate access to a judge—even by telephone in the middle of the night.”
Thus, despite debate and periodic suspension by government, habeas corpus has endured within law because the idea of an authority having the power to imprison someone without cause is abhorrent to general sensibilities.
According to the eighteenth-century jurist William Blackstone, the first instance of the term “habeas corpus” appeared in 1305. But the concept is generally assumed to have been part of the common-law tradition at the time of Magna Carta. Signed in 1215 by King John, Article 39 states: “No freeman shall be taken, or imprisoned, or disseized, or outlawed, or exiled, or in any way harmed—nor will we go upon or send upon him—save by the lawful judgment of his peers or by the law.” (The wording evolved over time.)
Magna Carta assumed political and legal prominence in the early seventeenth century when it was reinterpreted and used to advantage by the lawyer and parliamentarian Sir Edward Coke. Coke was a passionate advocate of common law over supreme monarchy; he famously proclaimed in Parliament, “Magna Carta is such a fellow that he will have no sovereign.” In 1628 he helped to draft the Petition of Right, which became a foundational document of the English Constitution. The Petition detailed the specific liberties of freemen, which legally constrained the king. For example, martial law could not be declared during a time of peace, and prisoners could use habeas corpus to challenge the legitimacy of their imprisonment.
The reinterpretation of Magna Carta had a profound impact on the American colonies, the charters for which were drafted during this period. Indeed, Coke may well have been one of the authors of the Virginia Company charter. These charters guaranteed that colonists would enjoy “all the rights and immunities of free and natural subjects.” Moreover, American revolutionaries like Thomas Jefferson and James Madison were intimately familiar with Coke’s four-volume Institutes of the Laws of England. When drafting their own documents to ensure liberty, the Founding Fathers drew heavily on his ideas. For example, the Third Amendment of the Bill of Rights derives from the Petition of Right’s ban on billeting troops.
The Founding Fathers also drew on the Habeas Corpus Act of 1679, which passed Parliament during the reign of King Charles II and strengthened that right against the power of the king. When it crossed the Atlantic to America, however, habeas corpus underwent a subtle but significant change. In England it was a weapon against monarchy that originated in the “rights” of nobles and only later grew to embrace the average person. In America it began as a core protection that every individual enjoyed against any governing authority.
The only specific reference in the Constitution occurs in the Suspension Clause (Article I, Section 9—“Limits on Congress,” Clause 2): “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.”
Although the reference is brief, it is highly significant that this particular protection of civil liberty is in the body of the Constitution while similar protections, such as the right to trial by jury, occur only in the appended Bill of Rights. There, the closest reference to habeas corpus occurs in the Sixth Amendment, which states a defendant must “be informed of the nature and cause of the accusation.” Thus the explicit inclusion of The Great Writ in the body of the Constitution suggests its importance for the Founding Fathers.
Nevertheless, the constitutional guarantee was a federal one and did not extend to those in state custody.
Habeas Corpus in the U.S.
The most famous habeas corpus case in pre–Civil War America was that of the slave Dred Scott, who attempted to sue for his freedom. An earlier and similar case in England would have given Scott reason for hope. In 1772 an African-American slave named James Somersett ran away from his master while they were both in England. He was recaptured but sympathizers obtained a writ of habeas corpus that required his captors to produce Somersett in court where he sued for and won his freedom. This case set the legal precedent that slavery was unlawful within England proper.
Almost a century later Dred Scott petitioned the U.S. federal court for a writ of habeas corpus; it was granted and later upheld by a court of appeals. Nevertheless, in 1857, in one of the most controversial cases in American history, the U.S. Supreme Court ruled against Scott seven to two. The court found that no slave or descendant of a slave could be an American citizen and so Scott was not a “person” within the purview of the Constitution. He did not possess the right of habeas corpus.
The writ continued to be intimately connected with slavery. During the Civil War, President Lincoln suspended habeas corpus in both 1861 and 1862; it was not restored until 1866.
The first suspension came early in the Civil War through an edict in 1861, when an estimated 20,000 Confederate sympathizers in Baltimore tried to block the movement of Union troops to Washington, D.C.
John Merryman, an officer in the Maryland cavalry and a secessionist, was among the thousands arrested. He petitioned for a writ of habeas corpus, which was granted by Chief Justice Roger B. Taney—the same Justice who presided over the Dred Scott case. Taney ordered the military to bring Merryman before the court; the military refused, citing Lincoln’s edict of suspension. Taney ruled that Lincoln’s suspension was unconstitutional because such a measure required an act of Congress. Lincoln basically ignored the ruling and continued to expand the territory throughout which habeas corpus was suspended.
The second suspension occurred when Congress instituted America’s first national military draft in July 1862, which incited widespread rebellion. On March 3, 1863, Congress passed the Habeas Corpus Act, legitimizing Lincoln’s former suspensions and approving any others he might make for the duration of the war.
Lincoln’s earlier suspension had been so broad as to allow local authorities to arbitrarily arrest anyone they personally considered to be disloyal or whose politics they simply disliked. Some of those arrested had done nothing more than criticize Lincoln. Union General Henry Halleck famously arrested a Missouri man merely for saying, “[I] wouldn’t wipe my ass with the stars and stripes.” Estimates of those arrested range widely, but overall 10,000 to 15,000 were probably imprisoned and denied a prompt trial. The Habeas Corpus Act, however, limited the time a person could be held without trial and so removed one of the most contentious aspects of the imprisonments.
It was not until 1866, with the court case ex parte Milligan, that the impropriety of the imprisonments themselves was put on trial. But the issue was legalistic and not based on civil liberty. The Supreme Court ruled that applying military tribunals to civilians in areas where civilian courts still operated was unconstitutional.
The post–Civil War period also resolved the issue of whether the right to petition for habeas corpus was purely federal or extended to the states. A Reconstruction act established that those held in state prisons and jails had the right to petition for a habeas review in federal court; this meant the writ applied to everyone imprisoned in America. Since then, the majority of habeas petitions reviewed in federal court have come from state prisoners through state courts for state crimes. This makes habeas corpus a rich area in terms of the relationship between federal and state courts and federal and state law.
History seems arcane but it assumes a living, breathing status when courts rule based on precedent. This was apparent in what is arguably the most significant development in habeas corpus within the last decade: Boumediene v. Bush (2008). The case began with a writ of habeas corpus submitted to the U.S. Supreme Court on behalf of the foreign citizen Lakhdar Boumediene, who was detained in the American military camp at Guantanamo Bay.
In November 2001 President Bush had asserted the authority of military commissions to try prisoners taken in Afghanistan or Iraq as “enemy combatants.” In early 2002 he established Camp X-Ray in Guantanamo and claimed that since the camp is not on American soil, the prisoners had no rights under the Constitution or the American legal system. Representatives of almost 200 detainees filed habeas corpus submissions over the next three years.
In 2004 the Supreme Court heard the first of these cases—Rasul v. Bush. The court’s landmark ruling found that the American legal system had authority to decide whether foreign “enemy combatants” were being wrongfully detained. In response, the Defense Department established Combatant Status Review Tribunals—nonpublic hearings that reviewed whether detainees met the criteria necessary to satisfy the designation “enemy combatant.” These tribunals were widely criticized as not fulfilling the requirements of Rasul. For example, the Court had affirmed a detainee’s right to be assisted by counsel, yet the tribunals did not permit this.
To quell growing criticism over the Guantanamo detainees, Bush signed the U.S. Military Commissions Act (MCA) in October 2006. Congress stated its intention “to authorize trial by military commission for violations of the law of war, and for other purposes.” The MCA explicitly abolished habeas corpus rights for noncitizens.
Boumediene—which consolidated with the earlier petition Al Odah v. United States (2002)—tested the constitutionality of the MCA, specifically appealing to the clause in the Constitution stating that the right to challenge detention “shall not be suspended” except in cases of “rebellion or invasion.” In June 2008 the Supreme Court’s 5–4 decision effectively struck down the MCA as an unconstitutional denial of habeas corpus; the ruling also asserted the jurisdiction of federal courts over such petitions from Guantanamo detainees who had been tried under the MCA.
Along with history, theoretical debates have driven the evolution of habeas corpus.
The key theoretical debate concerns whether habeas corpus is an inalienable natural right that preceded the State or a privilege granted by government. An inalienable right is one that cannot be transferred or taken away.
The Declaration of Independence, of course, embraced natural rights as the basis of liberty when it stated, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
If any right can be called “inalienable,” habeas corpus must be included on that list. As noted earlier, the right not to be imprisoned unjustly is the foundation on which all others rest. Indeed, in the absence of habeas corpus, the rights of due process—including trial by jury and facing your accuser—become meaningless.
The body of the Constitution contradicts both the Declaration of Independence and the Bill of Rights on habeas corpus, however, because the Suspension Clause makes it alienable and a privilege granted by government. Under certain circumstances defined by government, it can suspend habeas corpus, putting all other rights at the pleasure of the authorities.
Despite the contradictions and political maneuvering, the United States enshrined habeas corpus as a foundational right for every human being on American soil.
No external threat or internal problem can dismantle the individual freedoms on which America was created. Only government and the American public can accomplish that.