Why We Can't Let Them Tamper with Habeas Corpus

“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?