Why We Can't Let Them Tamper with Habeas Corpus





Mr. Lynd ran for president of the American Historical Association in 1969 on a program of opposition to the Vietnam War. His most recent book is Lucasville: The Untold Story of a Prison Uprising (Temple University Press).

“Habeas corpus”: it sounds like Latin (which it is), complicated, and user-unfriendly. An exotic form of the verb “to have” – the second person singular of the present subjunctive, according to my dictionary – and something about a “body,” apparently. But hardly anything to get excited about.

In reality the ancient judicial writ known as “habeas corpus” is the most elemental, existentially relevant pleading in Anglo-American legal practice. It is the form of words that seeks to protect us from indefinite, anonymous, uncharged imprisonment, and that gives a prisoner sentenced to death a last chance to reverse the trial verdict, or at least, the sentence.

Protection Against Indefinite Confinement

The writ stands in opposition to the practice of taking a human being into government custody and thereafter disappearing him or her in indefinite confinement. It is the remedy sought by the Argentinian mothers who assembled each year in the Plaza de Mayo to demand information about their missing children.

The writ is directed to the warden running the prison in which the missing person is thought to be confined. Imagining myself as that prisoner, a petition for writ of habeas corpus says, in effect: “Mr. Warden, we want to see Mr. Lynd. Bring him into open court. Tell us what he is charged with. Assure us, by actually showing us his body, that he is still alive, that he has not been tortured.”

Even in the repressive ambience of apartheid the government of South Africa dared to do away with habeas corpus only gradually. Prime Minister Vorster introduced a 90-day detention law in 1963. Then the initial detention term was doubled to 180 days, and in 1967 detention was made open-ended. Deaths in detention began within a few months of passage of the 1963 law. In 1977 prisoner Stephen Biko was murdered.

I first encountered the absence of habeas corpus when visiting occupied Palesine in the early 1990s. Representatives of the State of Israel take Palestinians into custody and keep them there without charging the prisoner with a crime. Every six months the prisoner is brought before a magistrate who reauthorizes the detention. Approximately 10,000 Palestinians are held as prisoners in Israel, many if not most of them in this state of undefined, indefinite confinement.

Under the United States Constitution, the power to suspend habeas corpus is a power of the Congress and Article I, Section 9 states: “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.” A remarkable decision by the Supreme Court of the United States in the midst of our Civil War, Ex parte Merryman, holds that neither the President’s officers nor the President himself can suspend the writ, even in time of war.

In recent years the suspension of habeas corpus has gained a foothold in the United States in circumstances that cannot fairly be described as rebellion or invasion. The several hundred prisoners at Guantanamo Bay are presently denied access to the federal courts by means of a habeas corpus petition. Instead, special military tribunals have been authorized to consider charges against so-called enemy combatants. These defendants are denied rights that are guaranteed by the United States Constitution and taken for granted by criminal defense attorneys. For example, the accused is restricted in selecting a lawyer, and the accused does not have the right to see all the evidence against him.

As I write, an attorney at the Center for Constitutional Rights has been accused of misconduct in connection with a list of all the prisoners at Guantanamo. This is the core issue: whether the government may apprehend persons whose very names become state secrets and whisk them away to nobody knows where for nobody knows how long.

Protection Against the Death Penalty

The writ of habeas corpus also remains the last resort of defendants sentenced to death. This is because the early appeals available to death-sentenced prisoners are to elected judges in state courts. In any jurisdiction where majority opinion still favors the death penalty, relief in a state court is unlikely.

Congress, under President Clinton, endeavored to prevent prisoners from accessing federal courts. The Prison Litigation Reform Act made it more difficult for a prisoner to file a law suit to begin with. The Antiterrorism and Effective Death Penalty Act seeks to restrict what a death-sentenced prisoner can do once having arrived in federal court by means of a habeas corpus petition.

What is to be Done?

The writ of habeas corpus as we know it was created by 800 years of popular struggle.

It all began with the ambiguous language of Chapter 39 of Magna Carta, which stated: “No free man shall be arrested or imprisoned or disseised [that is, deprived of his property] or outlawed or exiled or in any way victimized, neither will we attack him nor send anyone to attack him, except by the lawful judgment of his peers or by the law of the land.”

Over the centuries these words were gradually given more specific meaning. According to historian Peter Linebaugh, it was Sir Edward Coke who asserted that Chapter 39 declared the ancient law of England and specified that it prohibited torture, provided trial by jury, and required what Coke called “due process of law.”

And Coke paid for saying so. He was dismissed as Chief Justice of King’s Bench and imprisoned in the Tower of London. There he helped to draw up the Petition of Right of 1625 and worked on a book about Magna Carta. As he lay dying, “his chambers were ransacked and his manuscripts confiscated. At the beginning of the English Revolution, Parliament ordered their recovery and they were published in 1642.”

Others, too, sacrificed to expand the rights of the people in the 1640s and 1650s. “Freeborn” John Lilburne confronted the judges of Star Chamber unaccompanied by counsel and without the protection of due process concepts such as innocent until proven guilty. So often was he imprisoned that in one of his pamphlets he speaks of returning to his old and familiar lodgings in the Tower.

Now it is our turn. Why not make 2007-2008 the Year of the Rescued Writ?


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George Robert Gaston - 6/25/2007

Impeachment is essentially a political act. For example, one of the charges against Andrew Johnson was speaking to members of the House in a loud and disrespectful manner.

Lincoln ran no risk of impeachment. There were simply not enough votes in the House to impeach. I’m sure Lincoln knew this in 1861 when he suspended habeas corpus. I’m also sure congress was relieved that they did not have to deal with the question. Had it been otherwise it would not have stood until 1865.

Presidents can largely do what they have the political power to do. That is why we have elections. Our present circumstance allows congress can beat their breast in opposition while still having the practical benefit of the policy. If the administration would suddenly start releasing these people, (and many of them are very dangerous people), I’m sure you would hear a great deal of protest.

To quote George Bernard Shaw, “Yes there is humbug in hell”.

In reference to the Soviet Union, I would not be too worried. Your being able to make the statement proves the point. However, if they start requiring a license for your PC you may want to take another look.


Stephen Kislock - 6/25/2007

As a high school graduate, I am entitled to a opinion.

Yes, I do wish I had more education, but at 64, I will have go with what I have.

I have a deep and abiding Love of Our Country, with all the necessay attachments, i.e. The Constitution and The Bill of Rights included.


David Pinholster - 6/24/2007

Lincoln's suspension of habeas was an impeachable offense according to the Constitution. He used it to stifle dissent to the war, not save the Union. I don't think that is the best example to use. We are only a step or two away from the old Soviet Union anyway with our "war on drugs", S.W.A.T. teams and knockless warrants, and now the "war on terror". So let's throw out a few more sections of the Constitution.


George R Gaston - 6/24/2007

Actually, it was a paraphrase of a statement in a 1948 Supreme Court decision. The author was Justice Robert H. Jackson. The level of your discourse and knowledge of our history pretty well defines your politics.


Stephen Kislock - 6/23/2007

To start, Intelligence sources, for the Bush administration, this is a OxyMoron. The CIA, paying Bounties for Taliban fighter, want a $100 buck, give us a Name, don't like someone, they gone.

Egypt and Jordan are noted for there Torture, you say talk to them, want to go in their place? These so called Terrorist are People of inconveniences, to you.

Today, the way I read some of these post, the writers, have been subject sensory deprivation, like the people in Gitmo.

The US Constitution a "Suicide Pack", you get this from Fox News?

"Jury Nullification", may be the Second Most Important and Most misunderstood of Our Rights?


George Robert Gaston - 6/19/2007

No, I just happen to believe that the bill of rights is not a suicide pact. Lincoln suspended habeas corpus in a number of instances during the civil war. These actions were later overturned by the courts, but only after the suspensions had their desired effect (it was safe to overturn the action), and Lincoln was safely dead (reduced political fallout).


Randll Reese Besch - 6/14/2007

Follow the law of swift trials with defence lawers etc. and you wouldn't be bussing them anywhere they didn't want to go if they are found guilty or innocent. Right?
Gaston,do you even support habeus corpus? Subtextually you don't. Sounds like you are for the Star Chamber school of dictatorial law.


George Robert Gaston - 6/11/2007

Okay, We are not going to disclose the intelligence sources that led to their being detained.

So what do we do with them?

I say put them on a bus and drop them off at Chevy Chase Circle, or maybe Potomac MD. Let the folks that got them detained and the folks that let them go deal with them.

Warning: If this happens lock your doors.

Failing this we need to return these people to their country of origin. Maybe the Jordanian and Egyptian security people could talk some sense into them.

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