“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 I, Section IX of the U.S. Constitution
Habeas corpus, a fundamental tenet of English common law, does not appear anywhere in the Bill of Rights. Its importance was such that it was enshrined in the Constitution itself. And it is of such magnitude that all other rights, including those in the Bill of Rights, are dependent upon it. Without habeas corpus, the significance of all other rights crumbles.
The right of habeas corpus was important to the Framers of the Constitution because they knew from personal experience what it was like to be labeled enemy combatants, imprisoned indefinitely and not given the opportunity to appear before a neutral judge. Believing that such arbitrary imprisonment is “in all ages, the favorite and most formidable instrument of tyranny,” the Founders were all the more determined to protect Americans from such government abuses.
Translated as “you should have the body,” habeas corpus is a legal action, or writ, by which those imprisoned unlawfully can seek relief from their imprisonment. Derived from English common law, habeas corpus first appeared in the Magna Carta of 1215 and is the oldest human right in the history of English-speaking civilization. The doctrine of habeas corpus stems from the requirement that a government must either charge a person or let him go free.
While serving as President, Thomas Jefferson addressed the essential necessity of habeas corpus. In his first inaugural address on March 4, 1801, Jefferson said, “I know, indeed, that some honest men fear that a republican government cannot be strong; that this government is not strong enough.” But, said Jefferson, our nation was “the world’s best hope” and, because of our strong commitment to democracy, “the strongest government on earth.” Jefferson said that the sum of this basic belief was found in the “freedom of person under the protection of the habeas corpus; and trial by juries impartially selected. These principles form the bright constellation which has gone before us, and guided our steps through an age of revolution and reformation.”
In the two centuries since the Constitution was ratified, habeas corpus has only been suspended twice. It was first suspended on April 27, 1861, in Maryland and parts of midwestern states by President Abraham Lincoln in response to riots and local militia action, as well as the threat that Maryland would secede from the Union. The second suspension of habeas corpus occurred during Reconstruction, in the early 1870s, when President Ulysses S. Grant responded to civil rights violations by the Ku Klux Klan. It was then limited to nine counties in South Carolina.
Throughout the twentieth century, the importance of the right of habeas corpus has repeatedly been confirmed by the U.S. Supreme Court. And one federal appeals court observed that the Supreme Court has “recognized the fact that ‘[t]he writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.’”
In 1996, following the Oklahoma City bombing, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA), which limited the use of the federal writ of habeas corpus in two ways. First, it imposed a one-year statute of limitations on bringing the writ, which meant that those imprisoned were unable to apply for release after being imprisoned for over a year. Second, it dramatically increased the federal judiciary’s deference to decisions previously made in state court proceedings either on appeal or in a state court habeas corpus action. This means that federal judges were prohibited from examining a case purely on its merits and were instead forced to follow previous decisions.
AEDPA also required that if any constitutional right was to be invoked in order to vacate a conviction rooted in a mistake of law by the state court, it must have “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” In other words, actual innocence—surely the whole point of habeas corpus—has been removed as a ground for challenging one’s incarceration.
Following 9/11, President Bush made several attempts with varying degrees of success to revoke the right of habeas corpus. As well as the obvious example of denying habeas corpus proceedings to those detained at Guantanamo Bay, the president attempted, more surreptitiously, to grant himself the power to be able to revoke this basic right for every American citizen.
Habeas corpus concerns are also apparent in this law, which facilitates militarized police round-ups and the detainment of protesters in detention camps. The stated purpose of these camps is to provide “temporary detention and processing capabilities.” The plan calls for preparing for “an emergency influx of immigrants, or to support the rapid development of new programs” in the event of other emergencies, such as “a natural disaster.” However, Americans are incredibly naïve if they believe these camps will be used only to house illegal aliens. We would do well to remember that American citizens who protested at the 2004 Republican National Convention were detained.
President Bush went further when, on May 9, 2007, he issued a “presidential directive” that allows him to assume control of the federal government following a “catastrophic emergency.” Although the directive doesn’t specifically identify the types of emergencies that would qualify as “catastrophic,” the language is so broad that it could include almost anything that might have a major impact on the country. This directive would in effect make any president the final authority in such an emergency, as it states clearly that there will be a cooperative effort among the three branches of government that will be coordinated by the president. Each branch of government—the Executive, Legislative and Judicial—is supposed to be equal in power. Yet if the president is coordinating these efforts, it essentially puts him in charge of every branch of the government.
For suspected terrorists, it is important to note that those detained have not been held in a manner similar to how civilians would be detained by the police—that is, based upon probable cause. Many have been handed over by bounty hunters and arrested upon information obtained through vigorous interrogation. The evidence against many of the detainees, as well as its reliability, is extremely weak, if not downright nonexistent. This is why some speculate that the reason the president and Congress have attempted to prevent these detainees from having habeas corpus rights is that the evidence against them is not strong enough to stand up to the scrutiny of civilian courts.
The first effort by President Bush to avoid habeas corpus proceedings for suspects was the Presidential Military Order of November 13, 2001. This gave the president the power to detain as “enemy combatants” non-citizens suspected of having a connection to terrorists or terrorism. These individuals could then be held without charge indefinitely, without a court hearing and without access to a lawyer.
Not only have non-citizens been held in such a manner, but so too were American citizens, including those such as Jose Padilla who were captured on American soil, rather than on a foreign battlefield. Many legal and constitutional scholars have contended that these provisions are in direct opposition to the Constitution and the Bill of Rights, particularly with regard to American citizens. The U.S. Supreme Court agreed, declaring that American citizens have a right to habeas corpus even when declared to be enemy combatants. It also affirmed the basic principle that a citizen’s right to habeas corpus could not be revoked. And the Court in Rasul v. Bush stated that the policy of preventing the detainees access to the protections of habeas corpus was unconstitutional.
President Bush and Congress, however, were not deterred by the Supreme Court’s rulings that habeas corpus rights—at least for non-citizens—could not be violated, and passed legislation designed to prevent prisoners at Guantanamo Bay from having habeas corpus hearings. The 2006 Department of Defense Appropriations Act states in Section 1005(e) that “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.”
This ruling was challenged in Hamdan v. Rumsfeld. 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 Guantanamo Bay “violate both the UCMJ [Uniform Code of Military Justice] and the four Geneva Conventions.” The U.S. Supreme Court, in a 5-3 ruling, rejected Congress’ attempts to strip the court of jurisdiction over habeas corpus appeals by detainees at Guantanamo Bay.
Following this legal setback for the Bush Administration, Congress launched yet another attack on habeas corpus by passing the Military Commissions Act in 2006. The Act eliminated habeas corpus by allowing non-citizen enemy combatants to be held indefinitely in a military prison without access to a lawyer. The legislation’s denial of habeas corpus rights to non-citizens detained at Guantanamo Bay has since been challenged and will be considered by the U.S. Supreme Court.