In the post-9/11 world, there has been much talk about suspended freedoms and loss of civil liberties, and the "abolishment" of habeas corpus. But what does this mean?
Of the many Latin terms prevalent in both science and many legal institutions, one of the more common is the term Habeas Corpus. Especially in light of certain political situations of recent times, one often hears this term referred to (more often than not in the heat of controversy), for the right of Habeas Corpus is one of the fundamental rights of most common law legal systems.
The First Law of Habeas Corpus
In Latin, Habeas Corpus literally means “that you may have the body.” Traditionally, that is in 17th century England (1679, to be exact) when the procedure was first codified in English Common Law, a writ of Habeas Corpus (a writ is simply a formal legal commandment, issued from a judge or some other governing body) was issued by a judge, ordering that the addressee of the writ (whomever it is that is holding the prisoner on behalf of whom the writ has been issued, usually some form of local law enforcement) present the prisoner before the judge, who could then determine if the imprisonment was legal and fair under the law of the land.
The creation of this law sought to prevent needlessly elongated or unlawful imprisonment, forcing prisoners to be brought to fair trial in a timely manner. In addition, it helped to prevent abuses of power by local magistrates, for they could no longer wrongfully imprison people for extended periods of time.
American Habeas Corpus
In America, Habeas Corpus is guaranteed in Article One section Nine of the constitution, which reads, “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.” This single sentence serves as both an unambiguous statement of the rights of the accused, and a major source of contention all at once.
The founding fathers seemed to be rather good at provoking this kind of controversy.
America has enjoyed freedom under the protection of Habeas Corpus almost continually since the founding of the nation, with only a few minor hiccups along the way.
During the Civil War, both President Lincoln on the Union side and President Davis in the Confederacy, suspended Habeas Corpus in some areas so that they might imprison certain troublemakers in an effort to smother the rebellion and stifle mass discontentment. Davis even went so far as to impose martial law on his citizens in hopes that they might be less likely to rebel against the government.
During World War II, while there was no written declaration of the fact, Habeas Corpus was suspended (or simply not offered) to many of the Japanese-Americans who were sent to internment camps while fear of Japanese espionage ran high in the country, the explanation being that it was for their own good, as well as for that of the country. This is one of the most hotly debated events in our nation's history, and one that will probably never be fully settled.
Shades of Gray in Habeas Corpus
And right now, in the post 9/11 world, as one of the many facets of the war on terror, Habeas Corpus has been indefinitely suspended (though only in certain, very rare circumstances). Many suspected terrorists being held by the American government are able to be held indefinitely if they are considered enemy combatants.
While on the surface this may seem contrary to the inalienable rights held by all Americans, one must remember that certain situations truly are much more complicated than others, and must be examined much deeper before judgment can be made. After all, the Constitution does add a rather vague proviso that allows for just this very thing when it says, “unless when in Cases of Rebellion or Invasion the public Safety may require it.” It is this short addition that has allowed presidents to suspend Habeas Corpus at certain times they deem it necessary, and a distinction which is up to the Supreme Court to decide.
The right to Habeas Corpus truly is fundamental, and it truly is profoundly important – and has been for nearly four hundred years. Any truly impartial observer of history knows that, apart from very specific and unique circumstances, there is no danger in America of this right being taken away in the foreseeable future. Surely it will survive as long as, if not longer than, the constitution itself.
References:
“Habeas Corpus.” Lectric Law Library.
Article 1, Section 9. United States Constitution.
The Habeas Corpus Act of 1679.
