Hazards for Habeas Corpus: justice demands that an accused criminal be given the right of "habeas corpus," the ability to challenge the legality of his detention, but this right is being steadily eroded

New American, The, Oct 13, 2008 by Edwin Vieira, Jr.

Rogue public officials consolidating a police state dispatch jackbooted thugs to arrest dissidents. Their victims defend themselves with firearms. Those who are captured are branded "enemy combatants," and held indefinitely, incommunicado, without any specific charges brought against them, with no access to an attorney or hope of a fair trial.

A scenario from Stalin's Russia, contemporary Communist China, or some Third World dictatorship? That, surely. But it could also happen here, in the not-so-distant future.

Too many individuals already in high public office, or who aspire to it, would eagerly embrace a direct route to "social control" by removing or punishing refractory individuals without such bothersome legal technicalities as indictments and trials by jury. Look to the case in April at the FLDS ranch in Texas where nearly 500 children were forcibly taken from their weeping parents with only a court order, not a warrant.

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What stands in the way of these budding tyrants? As of now, one main obstacle: habeas corpus--which requires that a detained person be brought before a court to decide the legality of the detention or imprisonment. The first constitutional defense should be "We the People" ourselves, through "the Militia of the several States," which the Second Amendment declares are "necessary to the security of a free State." But today, fully constitutional militia are not in place in any state. Available right now--although under attack--is "the Privilege of the Writ of Habeas Corpus" in Article I, Section 9, Clause 2. This "Privilege"--which modern Americans would denote a "fundamental individual right"--is the only one the original Constitution (before the Bill of Rights) defines. So its critical importance cannot be gainsaid. (In Article IV, Section 2, the original Constitution also refers to the "Privileges and Immunities of Citizens in the several States," but does not define any of them.) Like the once-strong protections formerly provided by state militia, the protections prevailing because of habeas corpus are being eroded toward nullification.

Importance of Habeas Corpus

"The Privilege of the Writ of Habeas Corpus" derives from Article 39 of the Magna Carta in 1215, that "No free man shall be taken or imprisoned ... except by the legal judgment of his peers or by the law of the land." The Magna Carta, however, promulgated no process to enforce this principle. Slowly, though, procedures emerged. First, the writ was invoked to compel defendants to appear in civil actions and criminal prosecutions, and jurors to attend to their duties, in the king's courts. By the 1500s, common-law courts employed the writ to release prisoners being unlawfully detained under color of some other authority. And by the 1600s, expansion of the writ came to be understood as necessary to check abuses of the king's royal prerogative itself.

Standing in the way was the traditional limitation that the writ could not issue in the face of the king's command that a prisoner be detained, even with no reason stated. Thus, in 1627, King Charles I imprisoned several men who had refused to lend him money. Confronted with a warrant signed by the king's attorney general, pliant judges in the Court of King's Bench dismissed the prisoners' petition. An outraged House of Commons responded in 1628 with the Petition of Right, which decreed that "no freeman in any such manner" shall "be imprisoned or detained." In 1640, Parliament authorized the writ to challenge imprisonment under color of a warrant from the king or his Privy Council. Finally, in 1679, Parliament passed the Habeas Corpus Act, which set out definitive procedures for issuing the writ.

The political goad for the Habeas Corpus Act can perhaps be assigned to the high-handedness of King Charles II's henchman, Lord Clarendon, who had been impeached in 1667 for (among other charges) having "advised and procured divers of his majesty's subjects to be imprisoned against law in remote islands, garrisons, and other places, thereby to prevent them from the benefit of the law [of habeas corpus], and to produce precedents for the imprisoning of any other of his majesty's subjects in like manner." The act reached every individual "committed or detained ... for any crime." When imprisonment rested on a charge of felony or high treason, the act required that prosecution be brought by the next term of court, or the prisoner released on bail. And if prosecution was not thereafter brought, the prisoner was to be "discharged." In addition, the act prohibited the practice of detaining individuals overseas in order to frustrate the courts from issuing the writ.

King James II attempted to circumvent the Habeas Corpus Act by having his judges demand that prisoners post exorbitant bail as a condition of release. In 1689, Parliament responded with the English Bill of Rights, outlawing excessive bail.

Although the Habeas Corpus Act lacked direct application in the American Colonies, colonial courts granted the writ according to common-law principles because Americans asserted the privilege as one of "the rights of Englishmen" to which they were entitled. Along with Alexander Hamilton in The Federalist, No. 84, colonial Americans agreed with Sir William Blackstone, the leading legal commentator of that era, that habeas corpus was a bulwark of the British constitution. In his Commentaries on the Laws of England, Blackstone explained that