Golden Nuggets from U. S. History

The Blue Quill Series
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Habeas Corpus

Webster's Dictionary defines "habeas corpus" as:

"Any of several common-law "writs" having for their object to bring a party before a court or judge; . . . for inquiring into the lawfulness of the restraint of a person who is imprisoned or detained in another's custody."

and "writ" as:

"Law. (Orig.)., in English . . . an order or mandatory process . . . issued . . . in the name of a court or judicial officer, commanding the performance or nonperformance of some act."

Four things may put habeas corpus, or to be more precise, THE WRIT of habeas corpus into perspective.

One, you may recall from high school history about Abraham Lincoln suspending habeas corpus during the Civil War. It was illegal but he did it anyway.

Second, the United States did it again during WWII by putting Americans who happened to be descendents of Japanese into detention camps. That was illegal also.

Third, when we are detained by the police (or any government authority) within the jurisdictional authority of the US government we generally believe that we have the right to one phone call and that we cannot be held longer than 24 hours without being formally charged (booked). Not so. That is the common practice but when the Constitution was written we didn't even have telephones. The one phone call practice is used to cover the police's backside more than it is for the rights of the detainee. The 24 hours business is what a higher court would look to if the higher court is asked for a "habeas corpus hearing."

Fourth, in November 1999 Sixty Minutes had a piece about how, once again, our tax dollars are being flushed down a sewer. It seems that we have this federal program down in Haiti to help them put in a judicial system. Of course, the guy Clinton sent down there is a disbarred lawyer and the money is just going down a rat hole. Sixty Minutes showed Haitians being held in jail, some for more than two years, waiting to be charged or awaiting trial. In many cases, the detainee has been waiting in jail longer than he/she would have served if they had been found guilty and sentenced. Naturally, as of March 2000, we still have several thousand soldiers down there to protect the Haitians from their government and at the last report from Clinton, through his henchpersons -- the White House press corps -- the Haiti campaign is a huge success. Somehow, for the past 7 years I never seem to be tuned in when the media is issuing those daily investigative, follow up reports from Haiti, Bosnia, and Kosovo. I used to, during the Reagan and Bush years, see and hear daily reports from Somalia, Grenada, Panama, Guatemala, Nicaragua, etc. I wonder if the communications links are out of order...hmmm?

Held by police without being charged "can't" happen in the US because of the right of habeas corpus (HC). The way HC works is that if we are apprehended and stuffed into a jail, we must be brought before a magistrate/judge to be charged or we must be released. If the local yokels get us and will not act, our representative can go over their head to a higher court which MUST grant a hearing for a writ of HC. There is a very low threshold for the court to issue the writ, then the authority holding us must haul our "corpus" before the issuing court and explain why we are being held. If one court refuses to grant the writ, we can just keep going up the ladder. The court issuing the writ will then either hold -- or order -- a hearing for "probable cause" and if sufficient reason is not given to hold us, we must be released. The hearing can then be used to settle the question of bail.

This makes the point of why the first and second examples above were illegal. There is nothing in the Constitution which would justify suspension of HC under the circumstances Lincoln or Franklin Roosevelt faced. They invoked the suspensions "just in case" someone among the detainees might be a spy or saboteur. With that logic, the police could lock up everyone in New York City just in case somebody is planning a murder. Besides, the whole Constitution is based on INDIVIDUALS; not groups. There is no way to twist logic into suspension of HC for an entire group unless the very existence of the nation is at stake. Each case MUST be reviewed on it's own merit.

[For an example of habeas corpus in old England see Habeas Corpus Act of 1679.]

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