Are you willing to keep him locked
up based on suspect evidence that
he can’t even hear?
Habeas Corpus (also known as “The Great Writ”) is one of the fundamental principles of our democracy. Translated from the Latin, it roughly means “present (or show) the body.” In other words, a king (or the executive) can not just grab someone off the street and toss him/her in jail indefinitely without the safety net of an impartial judge taking a look at the case to determine if the accused has been properly imprisoned/detained. In other words, a Writ (i.e. an order) of Habeas Corpus requires that the king/executive has to present the person (i.e. the body) to the neutral judge/fact-finder in order to review the evidence and determine if there’s merit to the charge.
Our founding fathers felt so strongly about this principle that they purposefully enshrined it in our Constitution. "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. Article I, Section 9.
The Writ of Habeas Corpus sits side by side with the Magna Carta as great protections against overreaching executive power.
Recent Developments in Habeas Corpus
In 2005, in an effort to override the Supreme Court’s decision in Rasul, Congress passed the Detainee Treatment Act (“DTA”). The DTA stripped the federal courts of jurisdiction to consider habeas corpus petitions filed by prisoners in Guantanamo , or other claims asserted by Guantanamo detainees against the U.S. government. The Act also limited appellate review of decisions of the CSRTs and Military Commissions.
In June 2006, the U.S. Supreme Court decided the case of Hamdan v. Rumsfeld. Donald Rumsfeld was the Secretary of Defense at this time and Hamdan was the paid driver of Osama bin Ladin while bin Ladin was in Afghanistan . The Court held that the DTA did not specifically bar the Supreme Court, as opposed to other federal courts, from having jurisdiction. Further, the Court found that the administration did not have congressional authority to set up military commissions that did not comply with the Uniform Code of Military Justice (and the Geneva Conventions).
Responding to the Court’s decision later in 2006, Congress passed and President Bush signed the Military Commissions Act (“MCA”) of 2006. This statute authorized the planned military commissions, gave support to past and future determinations made by the Combatant Status Review Tribunals (CSRTs), and stripped federal courts (including the Supreme Court) of jurisdiction to hear any habeas corpus cases filed by detainees, including those that were pending at the time Congress enacted the MCA.
On June 12, 2008, the Supreme Court, in the case of Boumediene v. Bush, responded for the last time. In an historic ruling, the Court stated in a 5-4 decision that the Military Commissions Act of 2006 was unconstitutional. The Court held that the MCA improperly limited detainee's access to judicial review (habeas corpus) because the U.S. holds “de facto” control over Guantanamo (i.e., the U.S. military has held physical and real control over the base facilities, and has for more than 100 years).
ADDITIONAL RESOURCES ABOUT HABEAS CORPUS
Quick General Reference on Habeas Corpus
Wikipedia article on "Habeas Corpus"
Specific References on Habeas Corpus & Guantanamo
New Gitmo Prison An Economic Boost For Ill. Town
Guantánamo Won’t Close by January, Obama Says
An Ex-Detainee of the U.S. Describes a 6-Year Ordeal
Obama Orders Secret Prisons and Detention Camps Closed
Habeas Corpus: Further Reading
Origins of the Fifth Amendment: The Right Against Self-Incrimination by Leonard Levy is a Pulitzer Prize-winning history that brings the origins of habeas corpus and other essential rights to light for the contemporary reader.