Basic legal principle under attack in the US: Habeas Corpus: A Great Writ for Now

In recent months, at least four foreign scholars studying at American universities have been seized and detained by the immigration authorities but then released on the orders of federal judges. Those releases illustrate the enduring power throughout the common law world of "habeas corpus".

In legal terms, habeas corpus is simply the name for the procedure by which a court inquires into the legality of an individual's detention. Any person detained on territory controlled by the United Staes can demand that a federal court issue an order to the detaining official requiring him or her to bring the detainee before the judge to justify the detention. Unless the official shows that the detention is lawful, the detainee is entitled to release.

The procedure is known by its Latin name "habeas corpus" ("You shall have the body"), from the words of the ancient judicial writ directed to a jailer telling him to bring a prisoner into court.

More than a legal term

But habeas corpus, which has been part of the common law legal system for over seven hundred years, is rarely discussed in merely legal terms. The name carries a special resonance in Anglo-American legal and political history: habeas corpus is universally known and celebrated as the "Great Writ of Liberty". 

The reason is straightforward. As the United States Supreme Court wrote in 1963, habeas corpus embodies the root principle "that in a civilized society, government must always be accountable to the judiciary for a man's imprisonment: if the imprisonment cannot be shown to conform with the fundamental requirements of law, the individual is entitled to his immediate release".

Accordingly, attempts to extend the range and efficacy of the writ have been inseparably connected for centuries with attempts to secure justice for those who at any particular moment find themselves vilified by the dominant forces in society.

For that very reason, incumbent governments have always attempted to find methods to avoid being called to account.

Attempts to Circumvent Habeas Corpus

For example, in the recent cases involving the scholars, the government has sought to move the prisoners rapidly from one federal district to another in an attempt to evade the obligation to respond to the judiciary – hoping to implement deportations before the courts can act. Courts have uniformly blocked these efforts. In one case, at the beginning of July, the judges wrote "To allow the government to undermine habeas jurisdiction by moving detainees without notice or accountability reduces the writ of habeas corpus to a game of jurisdictional hide-and-seek."

The Trump Administration is so upset at being thwarted in this tactic that it has taken the remarkable action of filing a lawsuit against judges who have entered an order to forestalling such actions. It is as certain as is anything in law that this effort will fail.

Attempting to elude the writ by moving the prisoner to a distant location was a tactic so well known 350 years ago that it was vigorously condemned by the Habeas Corpus Act of 1679 – and has been repeatedly ever since, most recently in a Supreme Court ruling in May. 

The most extensive modern decision elaborating the basis for this condemnation was delivered after the terrorist attacks of September 11, 2001. The Bush Administration chose Guantanamo, which it believed would be beyond the reach of the American judiciary, as the location to detain prisoners captured in its "War on Terror". Congress then passed statutes denying those prisoners the right to bring writs of habeas corpus. In 2008, the Supreme Court overturned the legislation in a landmark decision, in which the prisoners were supported in briefs filed by the association representing the lawyers of all 53 commonwealth countries and by 175 members of the British Parliament. The Court wrote that the judicial branch not only has the authority to "protect[] the rights of the detained by . . . call[ing] the jailer to account", but the "duty" to do so in order to uphold "the essential design of the Constitution" by preventing the popularly-elected branches from illegally imprisoning unpopular individuals.

A core judicial power

The fact that habeas corpus is a judicial power is one reason why the courts have so consistently resisted attacks on it. The judicial branch may not have any more sympathy than the rest of society for particular prisoners, but it does have an interest in preserving its own prerogatives.

For example, in 1839 Africans who had been abducted and held captive aboard the Spanish ship Amistad killed two crew members and ordered the survivors to sail for Africa. Instead the sailors secretly guided the vessel to Connecticut, where the Africans were immediately taken into federal custody. Spain claimed that they were slaves and insisted that they be handed over forthwith to face execution for piracy and murder.

Citing pressing imperatives of international relations, President Van Buren’s administration supported this demand. It argued that the prisoners – men, women, and children alike – should be immediately returned to Spain without any federal court investigation into their status. Opposing this position in the Supreme Court, former President John Quincy Adams inquired indignantly, "Is there a law of habeas corpus in the land?"

Adams warned the court that it faced a challenge to "the power and independence of the judiciary itself." If the President could act without review in "the case of Africans," the President could do the same "in the case of American citizens." 

It took mere weeks for the Supreme Court to order that the prisoners be released. Observing that "all foreigners" were entitled to "contest their claims before any of our courts," the Court held that the evidence presented by the government did not establish the Africans' status as slaves and ordered their release.

After this victory, the Africans – who had entered the United States without papers, been immediately detained, and remained in the country in defiance of the government's wishes – lived and spoke freely in various states until they returned to Africa at a time of their choice.

Limitations of Habeas Corpus

The judicial power to issue writs of habeas corpus does have limits, though. In delineating the powers of Congress, the Constitution says: "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."

In May, an influential Trump Administration official, Stephen Miller, who has no legal training, threatened that President Trump might suspend the writ of habeas corpus to facilitate his program of deportations. The threat is utterly baseless legally and defenders of American liberty should not waste their time and attention, which are much needed elsewhere, on chasing after this red herring.

The Constitution clearly allocates the power to suspend the writ to Congress, not the President. And Congress has been extremely reluctant to exercise that power. It has done so only four times in United States’ history. In each instance it suspended the writ in limited locations for a restricted time when armed violence made normal court proceedings impossible. Most recently, Congress brusquely refused a Bush Administration proposal to suspend the writ in the immediate aftermath of the terrorist attacks of September 11, 2001.

Thus in the unlikely event that President Trump issued a proclamation suspending the writ, the courts would reject it on the basis that he lacked the power of suspension – without even reaching the issue that there is no "rebellion or invasion" currently taking place in the United States.

Habeas corpus, then, is a powerful weapon in the fight to require governments to conform to the rule of law. But it is hardly a perfect one. The procedure only benefits those in government custody, not others whose rights may be violated. And judicial orders are only efficacious if they are obeyed.

To be truly effective habeas corpus needs to be part of a structure of legal remedies constraining officeholders, including civil damages actions against misbehaving public officials and if need be criminal prosecutions of them. But the Supreme Court has relentlessly cut back on the availability of both civil and criminal actions. 

More critically, as the experience of democratic countries around the world shows, legal considerations are not the most important ones. The long-term efficacy of habeas corpus as a device to counteract public pressures for the lawless incarceration of individuals perceived as threats depends on the ineluctable reality that in the United States as elsewhere the politically active majority will ultimately get the Constitution it wants and is willing to struggle for.

Habeas corpus will be a meaningful legal mechanism only for so long as it indeed represents the desire of the body politic for a government that is constrained by legal rules enforced by an independent judiciary.

As a great American judge once said, "Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it."

Eric M. Freedman is the Siggi B. Wilzig Distinguished Professor of Constitutional Rights at Hofstra University School of Law in New York. His scholarly works include Habeas Corpus: Rethinking the Great Writ of Liberty (2003) and Making Habeas Work: A Legal History (2018).