Habeas corpus

In common law and other countries, habeas corpus (/'heɪbiəs 'kɔɹpəs/) is the name of a
legal action or writ by means of which detainees can seek relief from unlawful
imprisonment. The writ of habeas corpus has historically been an important instrument
for the safeguarding of individual freedom against arbitrary state action.

Known as the "Great Writ," a writ of habeas corpus ad subjiciendum is a court order
addressed to a prison official (or other custodian) ordering that a prisoner be brought
before the court so that the court can determine whether that person is serving a lawful
sentence or should be released from custody. The prisoner, or some other person on his
behalf (for example, where the prisoner is being held incommunicado), may petition the
court or an individual judge for a writ of habeas corpus.

The right of habeas corpus—or rather, the right to petition for the writ—has long been
celebrated as the most efficient safeguard of the liberty of the subject. Albert Venn Dicey
wrote that the Habeas Corpus Acts "declare no principle and define no rights, but they are
for practical purposes worth a hundred constitutional articles guaranteeing individual
liberty." In most countries, however, the procedure of habeas corpus can be suspended in
time of national emergency. In most civil law jurisdictions, comparable provisions exist,
but they may not be called "habeas corpus."[1]

Contents
 1 Derivation
 2 History of habeas corpus in England
 3 United States
o 3.1 Scope
o 3.2 Suspension during the Civil War and Reconstruction
o 3.3 Suspension in the United States during the “War on Terrorism”
 4 Australia
 5 Republic of Ireland
 6 Malaysia
 7 New Zealand
 8 Portugal
 9 Spain
 10 Popular culture
 11 Further reading on historical background
 12 See also
 13 References

14 External links
 Derivation
The writ is often referred to in full in legal texts as habeas corpus ad subjiciendum (or
more rarely ad faciendum, subjiciendum et recipiendum). The name derives from the
words of the writ in Medieval Latin:

Rex [AB] militi, gardiani prisonae nostrae [de le Fleet], salutem.

“
Praecipimus tibi quod corpus [CD] militis in prisona nostra sub custodia tua
detentum, ut dicitur, una cum die et causa captionis et detentionis suae,
quocumque nomine praedictus [CD] censeatur in eadem, habeas coram nobis
[tali die] ubicumque tunc fuerimus in Anglia, ad subjiciendum et recipiendum
ea quae curia nostra de eo adtunc et ibidem ordinare contigerit in hac parte.
Et hoc nullatenus omittatis periculo incumbente. Et habeas ibi hoc breve.

Teste, [EF, etc.] ”

The word habeas in the writ is not in the indicative mood ("You have ..."), but in the
subjunctive: "We command that you have ...". The full name of the writ is often used to
distinguish it from similar ancient writs:

 Habeas corpus ad deliberandum et recipiendum, a writ for bringing an accused

from a different county into a court in the place where a crime had been
committed for purposes of trial, or more literally to return holding the body for
purposes of “deliberation and receipt” of a decision;
 Habeas corpus ad faciendum et recipiendum, also called habeas corpus cum
causa, a writ of a superior court to a custodian to return with the body being held
by the order of a lower court "with reasons", for the purpose of “receiving” the
decision of the superior court and of “doing” what it ordered;
 Habeas corpus ad prosequendum, a writ ordering return with a prisoner for the
purpose “prosecuting” him before the court;
 Habeas corpus ad respondendum, a writ ordering return in order to allowing the
prisoner to “answer” to new proceedings before the court;
 Habeas corpus ad satisfaciendum, a writ ordering return with the body of a
prisoner for “satisfaction” or execution of a judgment of the issuing court; and
 Habeas corpus ad testificandum, a writ ordering return with the body of a
prisoner for the purposes of “testifying”.

That the basic form of the writs of habeas corpus, now written in English, has changed
little over the centuries can be seen from the following example (technically a writ ad
faciendum et recipiendum, but strikingly similar to the Latin form quoted above):
 The United States of America, Second Judicial Circuit, Southern District of
“ New York-ss.:

We command you that the body of Charles L. Craig, in your custody

detained, as it is said, together with the day and cause of his caption and
detention, you safely have before Honorable Martin T. Manton, United States
Circuit Judge for the Second Judicial Circuit, within the circuit and district
aforesaid, to do and receive all and singular those things which the said judge
shall then and there consider of him in this behalf; and have you then and
there this writ.

Witness the Honorable Martin T. Manton, United States Circuit Judge for the
Second Judicial Circuit, this 24th day of February, 1921, and in the 145th
year of the Independence of the United States of America. ”
History of habeas corpus in England
Blackstone cites the first recorded usage of habeas corpus ad subjiciendum in 1305,
during the reign of King Edward I. However, other writs were issued with the same effect
as early as the reign of Henry II in the 12th century. Blackstone explained the basis of the
writ, saying:

The King is at all times entitled to have an account, why the liberty of any of
“ his subjects is restrained, wherever that restraint may be inflicted. ”
The procedure for the issuing of writs of habeas corpus was first codified by the Habeas
Corpus Act 1679, following judicial rulings which had restricted the effectiveness of the
writ. A previous act had been passed in 1640 to overturn a ruling that the command of the
King was a sufficient answer to a petition of habeas corpus.

Then, as now, the writ of habeas corpus was issued by a superior court in the name of the
Sovereign, and commanded the addressee (a lower court, sheriff, or private subject) to
produce the prisoner before the Royal courts of law. A habeas corpus petition could be
made by the prisoner himself or by a third party on his behalf, and as a result of the
Habeas Corpus Acts could be made regardless of whether the court was in session, by
presenting the petition to a judge.

Since the 18th century the writ has also been used in cases of unlawful detention by
private individuals, most famously in Somersett's Case (1771), where the black slave
Somersett was ordered to be freed, the famous words being quoted:
 The air of England has long been too pure for a slave, and every man is free
“ who breathes it. ”
The privilege of habeas corpus has been suspended or restricted several times during
English history, most recently during the 18th and 19th centuries. Although internment
without trial has been authorised by statute since that time, for example during the two
World Wars and the Troubles in Northern Ireland, the procedure of habeas corpus has in
modern times always technically remained available to such internees. However, as
habeas corpus is only a procedural device to examine the lawfulness of a prisoner's
detention, so long as the detention was in accordance with an Act of Parliament, the
petition for habeas corpus would be unsuccessful. Since the passage of the Human Rights
Act 1998, the courts have been able to declare an Act of Parliament to be incompatible
with the European Convention on Human Rights. However, such a declaration of
incompatibility has no immediate legal effect until it is acted upon by the government.

The wording of the writ of habeas corpus implies that the prisoner is brought to the court
in order for the legality of the imprisonment to be examined. However, rather than
issuing the writ immediately and waiting for the return of the writ by the custodian,
modern practice in England is for the original application to be followed by a hearing
with both parties present to decide the legality of the detention, without any writ being
issued. If the detention is held to be unlawful, the prisoner can usually then be released or
bailed by order of the court without having to be produced before it. It is also possible for
individuals held by the state to petition for judicial review, and individuals held by non-
state entities to apply for an injunction.

United States
Main article: Habeas corpus in the United States

The United States Constitution specifically included the English common law procedure
in the Suspension Clause, located in Article One, Section 9. It 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. ”
The writ of habeas corpus ad subjiciendum is a civil, not criminal, proceeding in which a
court inquires as to the legitimacy of a prisoner's custody. Typically, habeas corpus
proceedings are to determine whether the court which imposed sentence on the defendant
had jurisdiction and authority to do so, or whether the defendant's sentence has expired.
Habeas corpus is also used as a legal avenue to challenge other types of custody such as
pretrial detention or detention by the United States Bureau of Immigration and Customs
Enforcement pursuant to a deportation proceeding.
 Scope

The writ of habeas corpus was originally understood to apply only to those held in
custody by officials of the Executive Branch of the federal government and not to those
held by state governments, which independently afford habeas corpus pursuant to their
respective constitutions and laws. The United States Congress granted all federal courts
jurisdiction under 28 U.S.C. § 2241 to issue writs of habeas corpus to release prisoners
held by any government entity within the country from custody in the following
circumstances:

 Is in custody under or by color of the authority of the United States or is

committed for trial before some court thereof; or
 Is in custody for an act done or omitted in pursuance of an Act of
Congress, or an order, process, judgment or decree of a court or judge of
the United States; or
 Is in custody in violation of the Constitution or laws or treaties of the
United States; or
 Being a citizen of a foreign state and domiciled therein is in custody for an
act done or omitted under any alleged right, title, authority, privilege,
protection, or exemption claimed under the commission, order or sanction
of any foreign state, or under color thereof, the validity and effect of
which depend upon the law of nations; or
 It is necessary to bring said persons into court to testify or for trial.

In 1950s and 1960s, decisions by the Warren Supreme Court greatly expanded the use
and scope of the federal writ. Though in the last thirty years, decisions by the Burger and
Rehnquist Courts have somewhat narrowed the writ. The Antiterrorism and Effective
Death Penalty Act of 1996 further limited the use of the federal writ by imposing a one-
year statute of limitations and dramatically increasing the federal judiciary's deference to
decisions previously made in state court proceedings either on appeal or in a state court
habeas corpus action.

Suspension during the Civil War and Reconstruction

On April 27, 1861, habeas corpus was suspended by President Lincoln in Maryland and
parts of midwestern states, including southern Indiana during the American Civil War.
Lincoln did so in response to riots, local militia actions, and the threat that the border
slave state of Maryland would secede from the Union, leaving the nation's capital,
Washington, D.C., surrounded by hostile territory. Lincoln was also motivated by
requests by generals to set up military courts to rein in "Copperheads" or Peace
Democrats, and those in the Union who supported the Confederate cause. His action was
challenged in court and overturned by the U.S. Circuit Court in Maryland (led by
Supreme Court Chief Justice Roger B. Taney) in Ex Parte Merryman, 17 F. Cas. 144
(C.C.D. Md. 1861). Lincoln ignored Taney's order. In the Confederacy, Jefferson Davis
also suspended habeas corpus and imposed martial law. This was in part to maintain
order and spur industrial growth in the South to compensate for the economic loss
inflicted by its secession.

In 1864, Lambdin P. Milligan and four others were accused of planning to steal Union
weapons and invade Union prisoner-of-war camps and were sentenced to hang by a
military court. However, their execution was not set until May 1865, so they were able to
argue the case after the Civil War. In Ex Parte Milligan 71 U.S. 2 (1866), the Supreme
Court of the United States decided that the suspension of the writ was unconstitutional
because the President was not empowered to try and convict citizens before military
tribunals. The trial of civilians by military tribunals is allowed only if civilian courts are
closed. This was one of the key Supreme Court Cases of the American Civil War that
dealt with wartime civil liberties and martial law.

In the early 1870s, President Grant suspended habeas corpus in nine counties in South
Carolina, as part of federal civil rights action against the Ku Klux Klan under the 1870
Force Act and 1871 Ku Klux Klan Act.

” Suspension in the United States during the “War on Terrorism

This section documents a current event.

Information may change rapidly as the event progresses.

The November 13, 2001 Presidential Military Order gave the President of the United
States the power to detain non-citizens suspected of connection to terrorists or terrorism
as an unlawful combatant. As such, it was asserted that a person could be held
indefinitely without charges being filed against him or her, without a court hearing, and
without entitlement to a legal consultant. Many legal and constitutional scholars
contended that these provisions were in direct opposition to habeas corpus, and the
United States Bill of Rights.

In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Supreme Court reaffirmed the right of
United States citizens to seek writs of habeas corpus even when declared enemy
combatants.

In Hamdan v. Rumsfeld, 548 U.S. ___ (2006), 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 Guantánamo Bay “violate both the Uniform Code of
Military Justice and the four Geneva Conventions.” In a 5-3 ruling, the Supreme Court
rejected Congress's attempts to strip the courts of jurisdiction over habeas corpus appeals
by detainees at Guantánamo Bay. Congress had previously passed the Department of
Defense Appropriations Act, 2006 which stated in Section 1005(e), “Procedures for
Status Review of Detainees Outside the United States”:

“(1) Except as provided in section 1005 of the Detainee Treatment Act of 2005,
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 Guantánamo Bay, Cuba.
“(2) The jurisdiction of the United States Court of Appeals for the District of
Columbia Circuit on any claims with respect to an alien under this paragraph shall
be limited to the consideration of whether the status determination … was
consistent with the standards and procedures specified by the Secretary of
Defense for Combatant Status Review Tribunals (including the requirement that
the conclusion of the Tribunal be supported by a preponderance of the evidence
and allowing a rebuttable presumption in favor of the Government's evidence),
and to the extent the Constitution and laws of the United States are applicable,
whether the use of such standards and procedures to make the determination is
consistent with the Constitution and laws of the United States.”

On 29 September 2006, the House and Senate approved the Military Commissions Act of
2006 (MCA), a bill that would suspend habeas corpus for any alien determined to be an
“unlawful enemy combatant" engaged in hostilities or having supported hostilities against
the United States”[2][3] by a vote of 65–34. (This was the result on the bill to approve the
military trials for detainees; an amendment to remove the suspension of habeas corpus
failed 48–51.[4]) President Bush signed the Military Commissions Act of 2006 into law on
October 17, 2006.

With the MCA's passage, the law altered the language from “alien detained … at
Guantánamo Bay”:

“Except as provided in section 1005 of the Detainee Treatment Act of 2005, 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 United
States who has been determined by the United States to have been properly
detained as an enemy combatant or is awaiting such determination.” §1005(e)(1),
119 Stat. 2742.

On 20 February 2007, the U.S. Court of Appeals for the District of Columbia Circuit
upheld this provision of the MCA in a 2-1 decision. The decision is likely to be appealed
to the Supreme Court.

Under the MCA, the law restricts habeas appeals for only those aliens detained as "enemy
combatants," or awaiting such determination. Left unchanged is the provision that, after
such determination is made, it is subject to appeal in U.S. Court, including a review of
whether the evidence warrants the determination. If the status is upheld, then their
imprisonment is deemed lawful; if not, then the government can change the prisoner's
status to something else, at which point the habeas restrictions no longer apply.

Wikinews has news related to:

President Bush signed into law the Military Commissions Act of 2006
There is, however, no legal time limit which would force the government to provide a
Combatant Status Review Tribunal (CSRT) hearing. Prisoners are legally prohibited from
petitioning any court for any reason before a CSRT hearing takes place.

On January 17, 2007, Attorney General Gonzales asserted in Senate testimony that while
habeas corpus is "one of our most cherished rights," the United States Constitution does
not expressly guarantee habeas rights to United States residents or citizens.

As such, the law could be extended to US citizens and held if left unchecked.[1]

Australia
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The writ of habeas corpus as a procedural remedy is part of Australia's English law
inheritance. In October 2005, the Australian Federal Government under the leadership of
Prime Minister John Howard, proposed the Federal Anti-Terrorism Act 2005. Before the
bills are introduced for debate in the Australian Parliament, the draft has been forwarded
to the States and Territories for approval.

The legislation was being debated in both the federal and state parliaments, and some
legal experts have stated that the act is unconstitutional because it abolishes habeas
corpus, due process, and the presumption of innocence.[citation needed] Some Solicitors-
General consider the Act also violates the separation of powers. Amendments made that
were proposed by some State Premiers and Liberal Party backbenchers include a greater
right of appeal of a detained person, and the case to be considered on the basis of merit,
rather than points of law.

The act allows the executive branch of government rather than the judiciary to imprison
people and to imprison people indefinitely without charge or trial. The act also makes it
an offence to even talk about somebody being imprisoned. One of the more controversial
aspects of the legislation is the requirement that a parent, if informed of their child's
detention, may not inform any further person including the other parent. This clause
applies also to detention of adults.

Also of controversy in Australia is this law's pertinence to the detention of Australian

nationals held in other countries under terrorism charges. All nations under international
law may claim jurisdiction over their citizens for trial within their country under its laws.
The Howard Government did not extradite David Hicks because there were no laws in
Australia by which he could be tried. David Hicks has written a letter to his family and
the high court pleading habeas corpus. It is being reviewed by the high court of Australia.
 Republic of Ireland
In the Republic of Ireland the principle of habeas corpus is guaranteed by Article 40,
Section 4 of the Irish constitution. This guarantees each individual "personal liberty" and
outlines a detailed habeas corpus procedure, without actually mentioning the Latin term.
However it also provides that habeas corpus is not binding on the Defence Forces during
a state of war or armed rebellion.

The state inherited habeas corpus as part of the common law when it seceded from the
United Kingdom in 1922, but the principle was also guaranteed by Article 6 of the
Constitution of the Irish Free State in force from 1922 to 1937. A similar provision was
included when the current constitution was adopted in 1937. Since that date habeas
corpus has been restricted by two constitutional amendments, the Second Amendment in
1941 and the Sixteenth Amendment in 1996.

Before the Second Amendment an individual detained had the constitutional right to
apply to any High Court judge for a writ of habeas corpus and to as many High Court
judges as they wished. Since the Second Amendment a prisoner has a right to apply to
only one judge, and, once a writ has been issued, the President of the High Court has
authority to choose the judge or panel of three judges who will decide the case. The
amendment also added a requirement that, where the High Court believed someone's
detention to be invalid due to the unconstitutionality of a law, it must refer the matter to
the Irish Supreme Court and may release the individual on bail only in the interim.

In 1965 the Supreme Court ruled in the O'Callaghan case that the provisions of the
constitution meant that an individual charged with a crime could be refused bail only if
they were likely to flee or to interfere with witnesses or evidence. Since the Sixteenth
Amendment, it has been possible for a court to take into account whether or not a person
has committed serious crimes while on bail in the past.

Malaysia
In Malaysia, the right of habeas corpus is enshrined in the Federal Constitution, though
the name habeas corpus is not used. Article 5(2) provides that "Where complaint is made
to a High Court or any judge thereof that a person is being unlawfully detained the court
shall inquire into the complaint and, unless satisfied that the detention is lawful, shall
order him to be produced before the court and release him."

As there are several statutes, for example, the Internal Security Act 1960, that still permit
detention without trial, the procedure is usually effective in such cases only if it can be
showed that there was a procedural error in the way that the detention was ordered.

New Zealand
While habeas corpus is generally used on the government, it can also be used on
individuals. In 2006, a child was allegedly kidnapped by his mother's father after a
custody dispute. The father filed habeas corpus against the mother, the grandfather, the
grandmother, the great grandmother, and another person alleged to have assisted in the
kidnap of the child. The mother did not present the child to the court and was imprisoned
for contempt of court. She was released when the childs grandfather came forward with
him in late January 2007. [2] [3]

Portugal
The Constitution of Portugal states that Habeas corpus shall be available to counter the
misuse of power in the form of illegal arrest, imprisonment or detention. According to the
Portuguese Penal Process Code, the application for it shall be made to the judge
conducting the preliminary investigations or to the Portuguese Supreme Court of Justice.

The reasons that may justify an habeas corpus are: exceeded the period to deliver the
detainee to judicial power; exceeded the detention period stated by law or judicial
decision; detention outside the legally allowed places; detention ordered by an
incompetent authority; and detention motivated for fact for which the law does not allow
detention.

Spain
The Spanish Constitution states that An habeas corpus procedure shall be provided for by
law in order to ensure the immediate handing over to the judicial authorities of any
person illegally arrested. The law which regulates the procedure is the Law of Habeas
Corpus of 24 May 1984 which provides that a person imprisoned may, on his own or
through a third person, allege his Habeas Corpus right and request to appear before a
judge. The request must specify the grounds on which the detention is considered to be
unlawful which can be, for example, that the imprisoner does not have the legal authority,
or that the prisoner's constitutional rights were violated or that he was subject to
mistreatment, etc. The judge may then request additional information if needed and may
issue an Habeas Corpus order at which point the holding authority has 24 hours to bring
the prisoner before the judge.

Popular culture
 Have His Carcase, a Peter Wimsey novel by Dorothy Sayers, derives its title from
"habeas corpus" (the title is a doggerel translation of the phrase, used in the novel)
- it makes reference, amongst other things, that at first in the novel, the body of
the murder victim cannot be produced.
 Habeas Corpus is the name of Monk's pig in Doc Savage, so called because it is
an insult to the fastidious lawyer character Ham.
 A song called Habeas Corpus appears on The Agony Scene's eponymous 2003
album.

 "Habeas Corpus" is the name of a fictitious movie that figures prominently in

Robert Altman's movie The Player.

 An episode of Angel is called "Habeas Corpses", a play on "habeas corpus".

 Habeas Corpus is the title of a 1973 stage farce by Alan Bennett.

 In the Prison Break episode The Message, Agent Mahone says that he can have
Bellick released from prison upon a Habeas Corpus hearing if Bellick agrees to
hunt down Charles "Haywire" Patoshik, who had killed a Wisconsin man in the
previous episode

 In the final episode of The OC we see Sandy Cohen in the future as a University
lecturer teaching his class about habeas corpus.

Further reading on historical background

 A.H. Carpenter. "Habeas Corpus in the Colonies." The American Historical
Review. Vol. 8., No. 1 (October 1902), pages 18-27.
 Louis Fisher. 2003. Nazi Saboteurs on Trial: A Military Tribunal and American
Law. University Press of Kansas. ISBN 0-7006-1238-6.
 Michael Dobbs. 2004. Saboteurs: The Nazi Raid on America. Vintage. ISBN 1-
4000-3042-0.
 Peter Irons. 1999. A People's History of the Supreme Court. Viking. ISBN 0-670-
87006-4. Political context for Ex Parte Milligan explained on Pp. 186-189.
 Helen A. Nutting. "The Most Wholesome Law--The Habeas Corpus Act of 1679."
The American Historical Review. Vol. 65., No. 3 (April 1960), pages 527-543.
 Geoffrey R. Stone. 2004. Perilous Times, Free Speech in Wartime From the
Sedition Act to the War on Terrorism. Norton. ISBN 0-393-05880-8.
 Cary Federman. 2006. The Body and the State: Habeas Corpus and American
Jurisprudence. SUNY. ISBN 0-7914-6703-1.
 Eric M. Freedman. 2001. Habeas Corpus: Rethinking the Great Writ of Liberty
(NYU Press) ISBN 0-8147-2717-4
 Robert Searles Walker, Ph.D., HABEAS CORPUS WRIT OF LIBERTY: English
and American Origins and Development, BookSurge/Amazon 2006
LibCongControl#2006906118, ISBN 1-4196-4478-5.

See also
 Edward Hyde, 1st Earl of Clarendon
 Neminem captivabimus
  Asha Bandele "Habeas Corpus is a legal Entitlement", a poem in Absence in the
Palms of My Hands & Other Poems. New York: Harlem River Press. 1996.
 Military Commissions Act of 2006
 Philippine Habeas Corpus Cases

References
1. ^ [Link]
2. ^ [Link]
3. ^ Klein, Rick (29 September). Senate's passage of detainee bill gives Bush a win:
Democrats say GOP capitulate. Boston Globe.
4. ^ [Link]

External links
 [Link]
 Petition for Habeas Corpus April 16, 1843 From Texas Tides

Retrieved from "[Link]

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