November 30, 2005


The Formerly Great Writ: Goodbye, habeas corpus. Hello, executive detention. (Emily Bazelon, Nov. 28, 2005, Slate)

Tucked into the renewal of the Patriot Act, which Congress will reconsider in December, is an unrelated provision that would make it harder for American prisoners to challenge their convictions in federal court. Congress may also soon vote to limit the rights of foreign detainees in Guantanamo Bay to apply to federal court.

To speak of a "right" of someone who is foreign is to depart the Constitution.

Posted by Orrin Judd at November 30, 2005 10:31 AM

A bit of a wrong turn here. Rights belong to "persons," a constitutional term of art considerable more expansive than "citizens."

War powers jurisprudence supports, and even prescribes, the path taken by the Patriot Act. In sum, the political branches are authorized to set up procedures for dealing with persons confined under war powers.

This does not mean that the Writ has been suspended. We are not locking up Copperhead congressmen or unfriendly newpaper editors as Lincoln did, only treating war criminals as we did the Nazi commandos, which is not the same thing.

Posted by: Lou Gots at November 30, 2005 10:50 AM

To speak of a "right" of someone who is foreign is to depart the Constitution.

You're coming around, Orrin. Now apply this to immigration.

Posted by: Paul Cella at November 30, 2005 11:01 AM

I thought the rights in the Constitution were given to all human beings by the Creator, not just to certain individuals by the government.

Posted by: Bryan at November 30, 2005 11:01 AM

Bryan: God didn't give anyone the "right" to appear in federal court.

Posted by: b at November 30, 2005 11:16 AM

Bryan, we reserve the right to "suspend" the rights of foreign belligerents who are actively trying to end American lives.

Posted by: Bartman at November 30, 2005 11:20 AM


Yes, they don't have a right to come here--it's a privilege we extend them gladly.

Posted by: oj at November 30, 2005 11:21 AM


The Constitution only secures the rights of we the people, as it states.

Of course the Constitution specifically allows for habeus corpus to be waived anyway in these kinds of instances:

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.

Posted by: oj at November 30, 2005 11:22 AM

"We" extend to them gladly? You got a mouse in your pocket or somethint?

Posted by: Paul Cella at November 30, 2005 11:33 AM


Teh Declaration contains the language of 'all men' and the rights endowed by their Creator. But it later discusses the just consent of the governed. Clearly, a terrorist captured in Iraq is not one of the 'governed'.

Posted by: jim hamlen at November 30, 2005 11:46 AM



Posted by: oj at November 30, 2005 11:54 AM

We don't have to guess.

Article 9, Clause 2: 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.

So, there is no right, though there is a Privilege. We add to that the (not directly applicable) language of the 14th Amendment:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Adding a few negative implications together, we see that there is a Privilege of Habeas Corpus, that it applies to citizens, that it cannot be suspended except in particular circumstances that might or might not be applicable here, but that it can be extended by Congress (i.e., the Constitution doesn't say that Congress shall make no law respecting the Privilege of Habeas Corpus).

Congress can do what it wants with the writ, except that it cannot narrow it beyond the scope of the writ in 1789 "unless when in Cases of Rebellion or Invasion the public Safety may require it."

Could Congress suspend the writ now? I've seen arguments that flying airplanes into our building, or sending terrorists across our border counts as an invasion, and I can't say that those arguments are beyond question wrong. But, for me, this is not what is meant by the word "invasion." However, the two circumstances under which the Framers were willing to have the writ suspended are telling: both involve domestic unrest. As the Framers certainly understood the possibiity that we would be involved in wars outside of the US (the war powers clauses unambiguously allow for such a war), why didn't they allow the writ to be suspended in such circumstances? The only possible answer is that they couldn't conceive of any circumstance in which the privilege of the writ being given to non-citizens located outside the borders of the United States, and in particular to prisoners of war, who are not subject to the state's police power and thus are not subject to the privilege of the writ by definition.

Which bring's us back to how the writ was understood in 1789 -- because that is the privilege that the constitution says cannot ordinarily be restricted. Fortunately, the Framer's understanding of the law as it stood in 1789 is easily determined: it was what Blackstone said it was.

According to Blackstone [all emphasis added]:

But the great and efficacious writ in all manner of illegal confinement, is that of habeas corpus ad subjiciendum; directed to the person detaining another, and commanding him to produce the body of the prisoner with the day and cause of his caption and detention, ad faciendum, subjiciendum, et recipiendum, to do, submit to, and receive, whatsoever the judge or court awarding such writ shall consider in that behalf. This is a high prerogative writ, and therefore by the common law issuing out of the court of king's bench not only in term-time, but also during the vacation, by a fiat from the chief justice or any other of the judges, and running into all parts of the king's dominions: for the king is at all times intitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted. ...

"[I]t is granted on motion, because it cannot be had of course; and there is therefore no necessity to grant it: for the court ought to be satisfied that the party hath a probable cause to be delivered." And this seems the more reasonable, because (when once granted) the person to whom it is directed can return no satisfactory excuse for not bringing up the body of the prisoner. So that, if it issued of mere course, without shewing to the court or judge some reasonable ground for awarding it, a traitor or felon under sentence of death, a soldier or mariner in the king's service, a wife, a child, a relation, or a domestic, confined for insanity or other prudential reasons, might obtain a temporary enlargement by suing out an habeas corpus, though sure to be remanded as soon as brought up to the court. And therefore Edward Coke, when chief justice, did not scruple in 13 Jac. I. to deny a habeas corpus to one confined by the court of admiralty for piracy; there appearing, upon his own shewing, sufficient grounds to confine him....

In a former part of these commentaries we expatiated at large on the personal liberty of the subject. It was shewn to be a natural inherent right, which could not be surrendered or forfeited unless by the commission of some great and atrocious crime, nor ought to be abridged in any case without the special permission of law. A doctrine co-eval with the first rudiments of the English constitution; and handed down to us from our Saxon ancestors, notwithstanding all their struggles with the Danes, and the violence of the Norman conquest.... But whoever will attentively consider the English history may observe, that the flagrant abuse of any power, by the crown or it's ministers, has always been productive of a struggle; which either discovers the exercise of that power to be contrary to law, or (if legal) restrains it for the future. This was the case in the present instance. The oppression of an obscure individual gave birth to the famous habeas corpus act, 31 Car. II. c. 2. which is frequently considered as another magna carta of the kingdom; and by consequence has also in subsequent times reduced the method of proceeding on these writs (though not within the reach of that statute, but issuing merely at the common law) to the true standard of law and liberty.

The statute itself enacts, ... 6. That every person committed for treason or felony shall, if he requires it the first week of the next term or the first day of the next session of oyer and terminer, be indicted in that term or session, or else admitted to bail; ... 8. That this writ of habeas corpus shall run into the counties palatine, cinque ports, and other privileged places, and the islands of Jersey and Guernsey. 9. That no inhabitant of England (except persons contracting, or convicts praying, to be transported; or having committed some capital offence in the place to which they are sent) shall be sent prisoner to Scotland, Ireland, Jersey, Guernsey, or any places beyond the seas, within or without the king's dominions....

From this we see that the Privilege of the Writ of Habeas Corpus, as protected in the Constitution, is a domestic writ, protects citizens, and certainly doesn't reach foreign prisoners of foreign wars held in foreign places. While Congress is free to expand the writ beyond these contours, it is also free to return to the original writ as it sees fit.

Posted by: David Cohen at November 30, 2005 12:59 PM


Posted by: Peter B at November 30, 2005 2:03 PM


Posted by: RC at December 1, 2005 6:33 AM

That was completely uncalled for, David. Now the rest of us ignoramuses have nothing left to say on the topic. Shame on you.

Posted by: joe shropshire at December 1, 2005 1:45 PM

Joe: You couldn't possibly have said anything more wounding. I hate oxygen sucking, conversation ending comments.

Posted by: David Cohen at December 1, 2005 5:20 PM

I was kidding you, bud. Great comment, concise and informative as always. Surely you didn't think I was serious? If you did, a thousand pardons.

Posted by: joe shropshire at December 1, 2005 7:32 PM

Joe: I was mostly kidding (at 5:20). You knew that, right? Right?

Posted by: David Cohen at December 1, 2005 8:51 PM

De nada, David. Sorry for the confusion.

Posted by: joe shropshire at December 2, 2005 12:23 AM