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They also provided means to challenge the authorized use of power, especially by the branch directly responsible for administering the law.

Chapter 14: The Right to Habeas Corpus

The writ of habeas corpus was one of those means. It could not be suspended, they agreed, except when necessary to preserve the nation itself. This principle, of course, is the central meaning of Ex Parte Milligan. The Court repeatedly has upheld its declaration that the President cannot suspend the Constitution without the express approval of Congress. Even though it has not applied the decision consistently, as the internment of Japanese Americans during World War II reveals, the justices have never repudiated Milligan.


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Its principles remain central to our democracy, as a case from the Iraq- Afghanistan conflict demonstrated. Under the congressional resolution authorizing the use of force, the U. Hamdi v. Today, we struggle to reconcile liberty and security, but the constitutional balance point is clear: we value liberty above all else, so we expect any use of governmental power to meet strict tests. One standard is that government must act according to the law.


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The writ of habeas corpus assures us that we have a means of enforcing this requirement. Benjamin Franklin, like other founders, knew this. We hold that although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.

In , ratifying conventions were held in each state to consider whether to approve the new constitution proposed by the convention in Philadelphia the previous year. Voters elected delegates who debated each provision of the document before agreeing to give or withhold consent. The right of habeas corpus, especially the power of Congress to suspend it during times of emergency, drew the attention of these conventions.

In this transcript of the Massachusetts debate, delegates voiced their concerns about this power of suspension. Judge Sumner said, that this was a restriction on Congress, that the writ of habeas corpus should not be suspended, except in cases of rebellion or invasion. The learned judge then explained the nature of this writ. When a person, said he, is imprisoned, he applies to a judge of the Supreme Court; the judge issues his writ to the jailer, calling upon him to have the body of the person imprisoned before him, with the crime on which he was committed.

If it then appears that the person was legally committed, and that he was not bailable, he is remanded to prison; if illegally confined, he is enlarged. This privilege, he said, is essential to freedom, and therefore the power to suspend it is restricted. On the other hand, the state, he said, might be involved in danger; the worst enemy may lay plans to destroy us, and so artfully as to prevent any evidence against him, and might ruin the country, without the power to suspend the writ was thus given. Congress have only the power to suspend the privilege to persons committed by their authority.

A person committed under the authority of the states will still have a right to this writ. Later during the Massachusetts convention, a delegate named Samuel Nasson argued that citizens should not give up the right of habeas corpus too easily. Samuel Nasson: The paragraph that gives Congress power to suspend the writ of habeas corpus, claims a little attention—This is a great bulwark—a great privilege indeed—we ought not, therefore, to give it up, on any slightest pretence.

Let us see—how long it is to be suspended? As long as rebellion or invasion shall continue. This is exceeding loose.

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Why is not the time limitted [sic] as in our Constitution? But, sir, its design would then be defeated—It was the intent, and by it we shall give up one of our greatest privileges. In , the Supreme Court extended the right of habeas corpus, which had been applicable only to federal courts, to individuals who had been convicted in state courts with its decision in Fay v. Under the new rule, the federal judiciary assumed a greater role for protecting the rights of prisoners. In the majority opinion, Justice William Brennan discussed the role of the writ of habeas corpus in protecting individual liberty.

It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement. It is of immemorial antiquity, an instance of its use occurring in the thirty-third year of Edward I. The writ brings the detainee before the courts to determine whether the ruling to sentence the person to time in jail was the correct sentence. It is commonly used when the participants in a case feel that the earlier decision to imprison a suspect was unfair or when the mental status of a convicted person is questionable.

A petition involving Habeas Corpus petition is filed as civil action against the state officer. In some instance, the writ is used to determine the amount of bail, whether the court acted within the law, and the extradition processes. The origin of Habeas corpus can be traced back to the early 13th century when King John signed the 39th clause of the Magna Carta.

Punishing the wrongfully convicted – Center for Public Integrity

It became part of the Anglo-American jurisprudence and was adopted by the US in when James Madison advocated for the adoption of the writ and the Bill of Rights. The US justice system recognize the writ as an essential instrument that safeguards the freedom of the citizenry against punitive state actions and must be administered flexibly to ensure that the wrongs of the justice system are corrected. Accordingly, habeas corpus also developed as the king's role to demand account for his subject who is restrained of his liberty by other authorities.

Deeply rooted in the Anglo-American jurisprudence, the law of habeas corpus was adopted in the U. The first Chief Justice of the U. Supreme Court, Chief Justice Marshall, emphasized the importance of habeas corpus, writing in his decision in , that the "great object" of the writ of habeas corpus "is the liberation of those who may be imprisoned without sufficient cause.

Supreme Court has recognized that the "writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action" and must be "administered with the initiative and flexibility essential to ensure that miscarriages of justice within its reach are surfaced and corrected.

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The sources of habeas corpus can be found in the Constitution, statutory law, and case law. Only Congress has the power to suspend the writ of habeas corpus, either by its own affirmative actions or through an express delegation to the Executive. The Executive does not have the independent authority to suspend the writ. In the First Judiciary Act of , Congress explicitly authorized the federal courts to grant habeas relief to federal prisoners.

Congress expanded the writ following the Civil War, allowing for habeas relief to state prisoners if they were held in custody in violation of federal law.

Historical Background

Federal courts granted habeas relief to state prisoners by finding that the state court lacked the proper jurisdiction. Post-World War II reforms further expanded the writ: through the incorporation process by which the Bill of Rights was applied to the states, habeas corpus became a tool by which criminal defendants sought to uphold their civil rights against illegal state action. The Warren Court further paved the way for broader habeas corpus rights. Second, unless a United States Court of Appeals gave its approval, a petitioner may not file successive habeas corpus petitions.