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THE GREAT WRIT HIT
"It must never be forgotten that the writ of habeas corpus
is the precious safeguard of liberty and there is no higher
duty than to maintain it unimpaired.''
—Charles Evans Hughes
"[I]f ever temporary circumstances, or the doubtful plea of
political necessity, shall lead men to look on [the] denial
[of the writ of habeas corpus] with apathy, the most distin
guished characteristic of our constitution will be effaced."
—Henry Hallam
AjjntlWt/ wice within the last year, the current 109th Congress
/11 has enacted anti-habeas corpus statutes—statutes that
^ . curtail the efficacy of the writ of habeas corpus. These
dreadful statutes are Orwellian nightmares. They are,
in the words of Sen. Patrick Leahy, “un-American" and “undercut
everything this nation stands for." They are practically unparal
leled in our history in opening the door to legalized oppression.
They are colossal mistakes which future generations will deride in
the same way our generation scorns the Alien and Sedition Acts of
1798 or the congressional legislation that authorized the intern
ment of the Japanese-Americans during WWII.
Before discussing the specifics of the two new anti-habeas cor
pus statutes, however, it would be helpful to give a brief overview
of the nature, importance and history of the writ of habeas corpus.
What Habeas Is
The writ of habeas corpus protects us from being unlawfully re
strained of our liberty. The granting of the writ is a key procedural
step taken by the court in certain nonjury civil actions—called
habeas corpus proceedings—instituted to challenge and obtain re
lease from illegal confinement. After the writ has been issued, the
court examines whether the restraint on liberty complained of is
legal, and, if it is not, terminates the restraint. Since confinement
is unlawful when it contravenes our fundamental rights, the writ of
habeas corpus provides assurance that we will not be imprisoned
by the government in violation of our constitutional or other basic
rights.
The writ of habeas corpus has been aptly described as “one
of the precious heritages of Anglo-American civilization." This is
why judges, legal commentators and scholars have for hundreds of
years justly lavished praise on the writ, describing it as “the Great
Writ," “the Freedom Writ," “the Writ of Liberty,* “the most cel
ebrated writ in our law," and "the great and efficacious writ in all
manner of illegal confinement." They also laud it as “the highest
safeguard of liberty," “the most important safeguard*of personal
liberty," "the most efficient protector of liberty that any legal
system has ever devised," "the great key of liberty to unlock the
prison doors of tyranny," “the safeguard and palladium of our lib
erties," “the best and only sufficient defense of personal freedom,"
"the fundamental instrument for safeguarding individual freedom
against arbitrary and lawless state action," "the only real and suf
ficient bastion of personal freedom and dignity," and "the greatest
bulwark of freedom against tyranny, oppression, and injustice."
In the felicitous words of Rollin C. Hurd, author of a classic
treatise on the writ, "The writ of habeas corpus is the water of life
to revive from the death of [unlawful] imprisonment"
Legally speaking, what exactly is a writ of habeas corpus and
what are the contours of a habeas corpus proceeding?
A writ of habeas corpus is a court order directed to a custo
dian—typically a warden or superintendent of a prison, jail or
other detention facility—commanding him to bring into court a
prisoner detained in the facility and to provide an explanation as
to why the prisoner is being held. The writ of habeas corpus will
be issued only after the prisoner (or someone acting lawfully in
behalf of the prisoner) has initiated a habeas corpus proceed
ing by filing in court under oath, a written petition for a writ of
habeas corpus alleging sufficient facts to warrant the conclusion
that the person detained is being unlawfully restrained of his lib
erty. Once the prisoner is produced pursuant to the writ the court
conducts an adversary hearing at which it inquires into the validity
of the prisoner's custody. Both the attorney for the detainee and
the attorney for the government are permitted to present evidence
and make legal arguments The issue of the legality of the custody
usually turns on whether it is in violation of the detainee's con
stitutional rights. The habeas corpus proceeding comes to an end
when the court makes its final decision regarding the lawfulness of
the custody under attack. If the court determines that the custody
is lawful the habeas petition will be dismissed and the prisoner
remanded to custody. If the court determines that the custody is
unlawful, it will, depending on the circumstances, release the pris
oner, fix or reduce bail or grant other appropriate relief. In most
American jurisdictions, this final order granting or denying relief in
a habeas corpus proceeding is appealable.
In modern usage, habeas corpus may be used to attack not
only the fact of detention but also the conditions of confinement.
Thus, even if the petitioner is serving a lawful sentence after be
ing lawfully convicted of crime, he may nonetheless be entitled
to appropriate habeas relief from unconstitutional conditions of
confinement.
An integral aspect of a judicial proceeding for freeing indi
viduals from restraints on liberty that violate fundamental rights,
the writ of habeas corpus is itself a fundamental right. Zechariah
Chafee once called habeas corpus "the most valuable right in the
Constitution." Indeed, the right to the writ of habeas corpus is the
most widely guaranteed basic right in America. Unlike any other
basic right, the right to habeas corpus is protected not only by
the U.S. Constitution and federal statutes, but also by the 50 state
constitutions and by statutes enacted in all 50 states. Pursuant to
these authorizations, both federal and state courts may issue writs
of habeas corpus. A prisoner in the custody of the federal govern
ment may seek a writ of habeas corpus only in a federal court. A
state prisoner seeking habeas relief must initially apply for the
writ in the state courts; if, however, relief is denied, and the cus
tody violates the prisoner's federally protected rights, he may then
apply to a federal court for the writ.
The writ of habeas corpus gets its name because originally the
writ, like other legal writs, was written in Latin and directed the
custodian to have the body (habeas corpus) of the prisoner in
court at the time specified in the writ.
History
The writ of habeas corpus originated in England. Although
it is often claimed that habeas corpus dates from Magna Carta
in 1215, the writ actually is traceable to the 14th, not the 13th
century. The earliest known case that is recognizable as a habeas
corpus proceeding was in the Chancery Court in 1341, and by the
middle of the next century, it was not uncommon for a prisoner to
obtain release from illegal confinement after instituting a habeas
corpus proceeding in either the Chancery Court or the Court of
King's Bench. By the early 1600s, the writ was well established in
England and a habeas corpus proceeding was widely acknowledged
to be the appropriate remedy for unlawfully imprisoned persons
seeking discharge from custody.
The writ of habeas corpus was part of the English law imported
into North America by the colonists who settled here and founded
the 13 colonies. The first known habeas corpus proc'.-eding in the
American colonies was in Virginia in 1682, and it is unquestion
able that the colonists held the writ in high regard. In 1777, when
it adopted its first state constitution, Georgia became the first
state to elevate habeas corpus to the level of a constitutional
right* by 1784, Massachusetts and New Hampshire had also includ
ed habeas protections in their state constitutions. Thus, in 1789,
when the U.S. Constitution's habeas corpus clause (Art I, § 9, cl.
2, providing: "The Privilege of the Writ of Habeas Corpus shall not
be suspended, unless in cases of Rebellion or Invasion the public
Safety may require it") took effect establishing habeas corpus as
a federal constitutional right the writ was already a constitutional
right in three states.
Many of the landmark individual rights decisions of the U.S.
Supreme Court have been habeas corpus proceedings. Among the
most notable are Mooney v. Holohan, 294 U.S. 103 (1935), which
held that it is a violation of the constitutional right to due process
of law to try and convict a defendant on the basis of evidence the
prosecutor knows is false; Johnson v. Zerbst, 304 U.S. 458 (1938),
which held that indigent federal criminal defendants are constitu
tionally entitled to appointed counsel; Gideon v. Wainwrioht, 372
U.S. 335 (1963), which held that indigent state criminal defen
dants are constitutionally entitled to appointed counsel; Sheppard
v. Maxwell, 384 U.S. 333 (1966), where relief was granted to Dr.
Sam Shepparo, who had been convicted of murdering his wife at a
trial that violated due process because of prejudicial publicity; and
Miller v. Pate, 386 U.S. 1 (1967), where the Court granted relief
to an innocent death row inmate who had been convicted of mur
der based on perjured testimony (and whose execution had been
stayed less than eight hours before its scheduled time).
One-Two Punch
With this background in mind, we can now take a close look
at the two anti-habeas corpus statutes enacted within the past
year, the Detainee Treatment (DTA), signed by President Bush on
Dec. 30, 2005, and the Military Commissions Act (MCA), approved
by Bush only a few weeks ago, on Oct. 17. Both statutes attempt
to give legislative legitimization to the Bush administration's
claim that during the war on terrorism, it may determine certain
captured prisoners (including U.S. citizens) in U.S. military cus
tody to be enemy combatants and detain them indefinitely, and
that it furthermore may designate various of thn r .e prisoners who
are not U.S. citizens as unlawful enemy combatants and try them
before military commissions. Both statutes are also intended to
curb judicial review of President Bush's widety-criHcized program
for imprisoning hundreds of foreign nationals, allegedly members
or agents of the Taliban or Al Qaeda, in the American high-secu
rity military prison recently constructed at the U.S. Guantanamo
Bay Naval Station, a 45-mile square enclave which is inside Cuba,
but over which the United States, pursuant to a treaty, exercises
complete control and jurisdiction. The Guantanamo detainees have
been declared by Bush to be outside the protections of the Geneva
Conventions; they are subject to indefinite incommunicado impris
onment; the conditions of their confinement are severe; and they
have been subjected to harsh interrogation practices.
The DTA, the first of these anti-habeas corpus statutes, was
passed in response to a U.S. Supreme Court decision, Rasul v.
Bush, 542 U.S. 466 (2004). In Rasul, 14 foreign nationals (two
Australians and 12 Kuwaitis) captured abroad and detained at
Guantanamo had filed habeas corpus petitions in federal district
court in Washington, DC, asserting that they had never been com
batants against the United States or engaged in terrorist activity,
that they had not been charged with any wrongdoing, permit
ted to consult with an attorney, or provided access to any court
or tribunal, and that because their imprisonment was unla’vful,
they were entitled to be discharged from their custody. The two
lower federal courts in this case interpreted the federal h?beas
corpus statutes to mean that federal courts lacked jurisdiction to
consider habeas petitions filed by foreign nationals confined at
Guantanamo. Construing those statutes differently, the Supreme
Court reversed, holding that the foreign nationals at Guantanamo
were not beyond the reach of the federal writ of habeas corpus and
that "the federal courts have jurisdiction to determine the legality
of the Executive's potentially indefinite detention of individuals
who claim to be wholly innocent of wrongdoing."
The DTA, Congress' reaction to the Rasul decision, amended the
federal habeas corpus statutes by enacting 28 U.S.C. § 2241(e),
which provided that no federal court shall have jurisdiction of
a habeas corpus petition filed by an alien detained in American
military custody at Guantanamo. The DTA did, on the other hand,
authorize a Guantanamo detainee to take a direct appeal to the
United States Court of Appeals for th» District of Columbia Circuit ^
from a final decision of the military that the detainee was an
enemy combatant and hence liable to indefinite imprisonment
Nonetheless, by cutting back on the habeas jurisdiction of the
federal judiciary, the DTA unquestionably narrowed the detainees'
access to the courts; a detainee now could not turn to the courts
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