Habeas Corpus

Introduction

The writ of habeas corpus, sometimes called the writ of liberty, is intended to prevent unjust arrests and imprisonments. The phrase habeas corpus comes from the Latin, meaning “you should have the body,” and those are the opening words of the writ. It is a court order directed to an officer holding a prisoner. It commands that the prisoner be brought before the court and that the officer show cause– explain, with good reason-why the prisoner should not be released.

The right to seek a writ of habeas corpus is protected against the National Government in Article I, Section 9 of the Constitution. That right is guaranteed against the States in each of their own constitutions.

The Constitution says that the right to the writ cannot be suspended, “unless when in Cases of Rebellion or Invasion the public Safety may require it.” President Abraham Lincoln suspended the writ in 1861. His order covered various parts of the country, including several areas in which war was not then being waged. Chief Justice Roger B. Taney, sitting as a circuit judge, held Lincoln’s action unconstitutional.

Taney ruled that the Constitution gives the power to suspend the writ to Congress alone. Congress then passed the Habeas Corpus Act of 1863. It gave the President the power to suspend the writ when and where, in his judgment, that action was necessary. In Ex parte Milligan, 1866, the Supreme Court ruled that neither Congress nor the President can legally suspend the writ where there is no actual fighting nor the likelihood of any.
The right to the writ has been suspended only once since the Civil War and the Reconstruction Period that followed it. The territorial governor of Hawaii suspended the writ following the Japanese attack on Pearl Harbor, December 7, 1941. The Supreme Court later ruled that the governor did not have the power to take that action, Duncan v. Kahanamoku, 1946.

Habeas Corpus: Congressional and Judicial Control

The writ of habeas corpus 1 has a special status because its suspension is forbidden, except in narrow circumstances, by Article I, § 9, cl. 2. The writ also has a venerable common law tradition, long antedating its recognition by the first Congress in the Judiciary Act of 1789,2 as a means “to relieve detention by executive authorities without judicial trial.” 3 Nowhere in the Constitution, however, is the power to issue the writ vested in the federal courts, which raises the question of whether Congress could suspend the writ de facto by declining to authorize its issuance. In other words, is a statute needed to make the writ available or does the right to habeas corpus stem by implication from the Suspension Clause or from the grant of judicial power? 4

Habeas Corpus and the U.S. Constitution

Since Chief Justice Marshall’s opinion in Ex parte Bollman,5 it was generally 6 accepted that “the power to award the writ by any of the courts of the United States, must be given by written law.” 7 As Marshall explained, however, the suspension clause was an “injunction,” an “obligation” to provide “efficient means by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted.” 8 And so it has been understood since,9 with only a few judicial voices raised to suggest that what Congress could not do directly (by suspension) it could not do by omission (by failing to provide for habeas). 10 But, because statutory authority had always existed authorizing the federal courts to grant the relief they deemed necessary under habeas corpus, the Court did not need to face the question. 11

Habeas Corpus: Developments

Having determined in Bollman that a statute was necessary before the federal courts had power to issue writs of habeas corpus, Chief Justice Marshall pointed to § 14 of the Judiciary Act of 1789 as containing the necessary authority.12 As the Chief Justice read it, the authorization was limited to persons imprisoned under federal authority. It was not until 1867, with two small exceptions,13 that legislation specifically empowered federal courts to inquire into the imprisonment of persons under state authority.14 Pursuant to this authorization, the Court then expanded the use of the writ into a major instrument to reform procedural criminal law in both federal and state jurisdictions.

More about Habeas Corpus

However, the question then arose as to what aspects of this broader habeas are protected against suspension. Noting that the statutory writ of habeas corpus has been expanded dramatically since the First Congress, the Court has written that it “assume[s]… that the Suspension Clause of the Constitution refers to the writ as it exists today, rather than as it existed in 1789.” 15 This statement, however, appears to be in tension with the theory of congressionally defined habeas found in Bollman, unless one assumes that a habeas right, once created, cannot be diminished. The Court, however, in reviewing provisions of the Antiterrorism and Effective Death Penalty Act 16 that limited habeas, passed up an opportunity to delineate Congress’s permissive authority over habeas, finding that none of the limitations to the writ in that statute raised questions of constitutional import.17

Other Aspects

For practical purposes, the issue appears to have been resolved by Boumediene v. Bush,18 in which the Court held that Congress’s attempt to eliminate all federal habeas jurisdiction over “enemy combatant” detainees held at Guantanamo Bay 19 violated the Suspension Clause. Although the Court did not explicitly identify whether the underlying right to habeas that was at issue arose from statute, common law, or the Constitution itself, it did decline to infer “too much” from the lack of historical examples of habeas being extended to enemy aliens held overseas.20 In Boumediene, the Court instead emphasized a “functional” approach that considered the citizenship and status of the detainee, the adequacy of the process through which the status determination was made, the nature of the sites where apprehension and detention took place, and any practical obstacles inherent in resolving the prisoner’s entitlement to the writ.21

More about Habeas Corpus

In further determining that the procedures afforded to the detainees to challenge their detention in court were not adequate substitutes for habeas, the Court noted the heightened due process concerns when a detention is based principally on Executive Branch proceedings-here, Combatant Status Review Tribunals or (CSRTs)- rather than proceedings before a court of law.22 The Court also expressed concern that the detentions had, in some cases, lasted as long as six years without significant judicial oversight.23 The Court further noted the limitations at the CSRT stage on a detainee’s ability to find and present evidence to challenge the government’s case, the unavailability of assistance of counsel, the inability of a detainee to access certain classified government records which could contain critical allegations against him, and the admission of hearsay evidence. While reserving judgment as to whether the CSRT process itself comports with due process, the Court found that the appeals process for these decisions, assigned to the United States Court of Appeals for the District of Columbia, did not contain the means necessary to correct errors occurring in the CSRT process. 24

Suspension of Habeas Corpus by the President

See Article I, § 9.

Resources

See Also

References

This text about Habeas Corpus is based on “The Constitution of the United States of America: Analysis and Interpretation”, published by the U.S. Government Printing Office.

Notes

[Footnote 1] Reference to the “writ of habeas corpus” is to the “Great Writ,” habeas corpus ad subjiciendum, by which a court would inquire into the lawfulness of a detention of the petitioner. Ex parte Bollman, 8 U.S. (4 Cr.) 75, 95 (1807). For other uses, see Carbo v. United States, 364 U.S. 611 (1961); Price v. Johnston, 334 U.S. 266 (1948). Technically, federal prisoners no longer utilize the writ of habeas corpus in seeking post-conviction relief, now the largest office of the writ, but proceed under 28 U.S.C. § 2255, on a motion to vacate judgment. Intimating that if § 2255 afforded prisoners a less adequate remedy than they would have under habeas corpus, it would be unconstitutional, the Court in United States v. Hayman, 342 U.S. 205 (1952), held the two remedies to be equivalent. Cf. Sanders v. United States, 373 U.S. 1, 14 (1963). The claims cognizable under one are cognizable under the other. Kaufman v. United States, 394 U.S. 217 (1969). Therefore, the term habeas corpus is used here to include the § 2255 remedy. There is a plethora of writings about the writ. See, e.g., Hart & Wechsler (6th ed), supra at 1153-1310; Developments in the Law: Federal Habeas Corpus, 83 HARV. L. REV. 1038 (1970).

[Footnote 2] Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 82.

[Footnote 3] INS v. St. Cyr, 533 U.S. 289, 301 (2001), quoted in Rasul v. Bush, 542 U.S. 466, 474 (2004).

[Footnote 4] Professor Chafee contended that by the time of the Constitutional Convention the right to habeas corpus was so well established no affirmative authorization was needed. The Most Important Human Right in the Constitution, 32 B.U.L. REV. 143, 146 (1952). But compare Collins, Habeas Corpus for Convicts: Constitutional Right or Legislative Grace?, 40 CALIF. L. REV. 335, 344-345 (1952).

[Footnote 5] 8 U.S. (4 Cr.) 75 (1807).

[Footnote 6] 8 U.S. at 94. See also Ex parte Dorr, 44 U.S. (3 How.) 103 (1845).

[Footnote 7] 8 U.S. at 64.

[Footnote 8] 8 U.S. at 95. In quoting the clause, Marshall renders “shall not be suspended” as “should not be suspended.”

[Footnote 9] See Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869). Cf. Carbo v. United States, 364 U.S. 611, 614 (1961).

[Footnote 10] E.g., Eisentrager v. Forrestal, 174 F.2d 961, 966 (D.C. Cir. 1949), revd. on other grounds sub nom., Johnson v. Eisentrager, 339 U.S. 763 (1950) (holding that habeas exists as an inherent common law right); see also Justice Black’s dissent, id. at 791, 798: “Habeas corpus, as an instrument to protect against illegal imprisonment, is written into the Constitution. Its use by courts cannot in my judgment be constitutionally abridged by Executive or by Congress.” And, in Jones v. Cunningham, 371 U.S. 236, 238 (1963), the Court said: “The habeas corpus jurisdictional statute implements the constitutional command that the writ of habeas corpus be made available.” (Emphasis added).

[Footnote 11] Cf. Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869).

[Footnote 12] Ex parte Bollman, 8 U.S. (4 Cr.) 75, 94 (1807). See Fay v. Noia, 372 U.S. 391, 409 (1963).

[Footnote 13] Act of March 2, 1833, § 7, 4 Stat. 634 (federal officials imprisoned for enforcing federal law); Act of August 29, 1842, 5 Stat. 539 (foreign nationals detained by a state in violation of a treaty). See also Bankruptcy Act of April 4, 1800,§ 38, 2 Stat. 19, 32 (habeas corpus for imprisoned debtor discharged in bankruptcy), repealed by Act of December 19, 1803, 2 Stat. 248.

[Footnote 14] The act of February 5, 1867, 14 Stat. 385, conveyed power to federal courts “to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States…. ” On the law with respect to state prisoners prior to this statute, see Ex parte Dorr, 44 U.S. (3 How.) 103 (1845); cf. Elkison v. Deliesseline, 8 Fed. Cas. 493 (No. 4366) (C.C.D.S.C. 1823) (Justice Johnson); Ex parte Cabrera, 4 Fed. Cas. 964 (No. 2278) (C.C.D. Pa. 1805) (Justice Washington).

[Footnote 15] Felker v. Turpin, 518 U.S. 651, 663-64 (1996). See INS v. St. Cyr, 533 U.S. 289, 300-01 (2001) (leaving open the question of whether post-1789 legal developments are protected); Swain v. Pressley, 430 U.S. 372 (1977) (finding “no occasion” to define the contours of constitutional limits on congressional modification of the writ).

[Footnote 16] Pub. L. 104-132, §§ 101-08, 110 Stat. 1214, 1217-26, amending, inter alia, 28 U.S.C. §§ 2244, 2253, 2254, 2255, and Fed. R. App. P. 22.

[Footnote 17] Felker v. Turpin, 518 U.S. 651 (1996).

[Footnote 18] 128 S. Ct. 2229 (2008).

[Footnote 19] In Rasul v. Bush, 542 U.S. 466 (2004), the Court found that 28 U.S.C. § 2241, the federal habeas statute, applied to these detainees. Congress then removed all court jurisdiction over these detainees under the Detainee Treatment Act of 2005, Pub. L. 109-148, § 1005(e)(1) (providing that “no court… shall have jurisdiction to hear or consider… an application for… habeas corpus filed by… an alien detained… at Guantanamo Bay).” After the Court decided in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), that the Detainee Treatment Act did not apply to detainees whose cases were pending at the time of enactment, it was amended by the Military Commissions Act of 2006, Pub. L. 109-366, to also apply to pending cases where a detainee had been determined to be an enemy combatant.

[Footnote 20] 128 S. Ct. at 2251.

[Footnote 21] 128 S. Ct. at 2258, 2259.

[Footnote 22] Under the Detainee Treatment Act, Pub. L. 109-148, Title X, Congress granted only a limited appeal right to determination made by the Executive Branch as to “(I) whether the status determination of [a] Combatant Status Review Tribunal… was consistent with the standards and procedures specified by the Secretary of Defense… and (ii) 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.” § 1005(e)(2)(C).

[Footnote 23] 128 S. Ct. at 2263, 2275.

[Footnote 24] The Court focused in particular on the inability of the reviewing court to admit and consider relevant exculpatory evidence that was not introduced in the prior proceeding. The Court also listed other potential constitutional infirmities in the review process, including the absence of provisions empowering the D.C. Circuit to order release from detention, and not permitting petitioners to challenge the President’s authority to detain them indefinitely.