There are a lot of Latin legal terms in the news lately. One that has always been considered essential is habeas corpus. The writ of habeas corpus is a very long-standing human right, recognized since 12th century England and a part of the U.S. Constitution since our founding. It is a means for a detained or arrested person to challenge the legality of that action. Presently, there are efforts to restrict this right.
In our country, there are laws that people in government must follow. These include providing due process and other requirements before depriving a person of their freedom. At a minimum, there must be probable cause of illegal activity to justify an arrest. Even with an immigration deportation, there are legal standards and the right to challenge the government’s action.
Anyone who is held by law enforcement has the right of access to court to challenge the legal basis for their detention and the sufficiency of evidence. Filing a writ of habeas corpus starts the procedure by asking the jailor or other person responsible for detaining them to produce their body before a judge. The detainee asserts that they are being illegally held in custody and should be immediately released. The application for a writ requests the court to require the government to show evidence supporting their arrest or detention.
The right to this writ is declared in Article 1, Section 9 of the Constitution, which emphatically states to Congress that “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.”
A writ of habeas corpus can be filed at the beginning of detention or any later time, even after conviction and sentencing. It is a bedrock part of the American legal system, an important check on governmental power. By building in the right to ask a court to review what law enforcement and prosecutors have done, our founders built in transparency and rejected secrecy.
They also expressed that the “rule of law” is different from mere accusation, that allegations must be backed up with evidence of illegal behavior. and that the evidence must be publicly produced when challenged in court.
Masked men grabbing people off the streets and disappearing them to unrevealed locations is what we thought happened only in other countries, never in America. The fact that it is happening here and now is unbelievable to many. The method for speedily challenging these actions is through a writ of habeas corpus.
Recently, college students who advocated for Palestinians in Gaza and were taken into custody by ICE agents have been released through federal court habeas hearings while their immigration proceedings continued. They allege they are legally in the U.S. and that the efforts to deport them violate their First Amendment Free Speech and Fifth Amendment Due Process Constitutional protections.
After Abraham Lincoln suspended habeas corpus during the Civil War, the Supreme Court ruled only Congress had the power to do that, not the president. Americans of Japanese heritage were confined in internment camps for years during WWII without any opportunity to challenge. Finally, in 1988, Congress and President Reagan apologized and provided a token compensation fund.
After the 9/11 attacks, President Bush ordered men labelled “enemy combatants” by the military to be detained at Guantanamo on Cuba, with no charges brought against them. Guantanamo was chosen because it was not on U.S. territory, and the Bush Administration believed they could completely deprive the inmates of all rights while they imprisoned them indefinitely, for however many years the “war on terror” would last.
Four cases brought by Guantanamo inmates eventually made it to the Supreme Court over four years. The Court ruled against the government every time, concluding that even non-citizens held at Guantanamo have a constitutional right to use the writ of habeas corpus to contest their confinement.
They said, “Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.”