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.

Habeas Corpus Extends How Far?

The purpose of the writ of habeas corpus is to require public officials to prove the legal basis for depriving an individual of his liberty.

The privilege of seeking the writ is not limited to particular classes of individuals. Even in pre-constitutional British law, it attached to aliens--including enemy aliens--as well as to citizens. And even to slaves, whom most legal theorists of that era believed to enjoy next to no fundamental rights at all, being treated as a species of "property."

The writ also reaches prisoners in places over which, although situated in foreign lands, the United States exercises control, or where officials or agents of the General Government are the actual jailers. This is because officials or agents of the General Government cannot detain anyone anywhere, except insofar as some law of the United States so authorizes them. And they cannot act in any way that the Constitution prohibits, for example by denying even aliens inhabiting territories under the control of the United States "guarantees of certain fundamental rights declared in the Constitution." Balzac v. Porto Rico, 258 U.S. 298, 312 (1922). See also Murphy v. Ramsey, 114 U.S. 15,44(1885), which correctly concluded that the powers of the United States are not "absolute and unlimited" when exercised in foreign territory, but are always "subject to such restrictions as are expressed in the Constitution." Otherwise, simply by making deals with corrupt foreign rulers, rogue American public officials could operate in overseas enclaves uncontrolled by the Constitution!

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Founders' Safeguards

A court hearing a petition for a writ of habeas corpus does not rule on the innocence or guilt of the individual in custody, but only on the custodian's authority to detain him. Absent such authority, the prisoner must be released.

Congress has the power to promulgate standards and procedures for invoking the privilege, under its authority: (i) "To constitute Tribunals inferior to the supreme Court," and by necessary inference the jurisdiction of such "Tribunals" (Article I, Section 8, Clause 9); (ii) to make "Regulations" with respect to the "appellate Jurisdiction" of the Supreme Court (Article III, Section 2, Clause 2); and (iii) "To make all Laws which shall be necessary and proper" for these purposes (Article I, Section 8, Clause 18). And it has a duty to do so, as well--because Congress' neglect, failure, or refusal to render the Constitution's guarantee of the writ meaningful would amount to a tacit suspension of it.

Whatever comports, in terms of comprehensiveness, reliability, and fairness, with the common-law procedures American courts employed in the late 1700s should pass muster today. Nonetheless, these historic processes are only "the absolute minimum." INS v. St. Cyr, 533 U.S. 289, 301 (2001). Therefore Congress may expand on them, to the benefit of persons seeking the writ.

Exercising the powers catalogued above, Congress may suspend the privilege, but only "when in Cases of Rebellion or Invasion the public Safety may require it." So suspension requires not only a bare statute, but also circumstances that meet the constitutional criteria. Congress has considered these requirements satisfied in few instances.