Jan 25, 2018 in Research

Torture or Survival?


According to the Constitution of the United States written in 1887, the writ of habeas is specifically written as a fundamental legal foundation of the nation. In many ways, the writ of habeas corpus was the mechanism initiated by the founders of the nation, not only to promote the separation of powers, but also to uphold the balance between them. It was the critical protector of the rights of any person in danger of unlawful incarceration or confinement. All in all, it is the law, and not the government that ought to be the definitive determinant of democracy and that the rights of the people have to be the focus of the law.

The Right of Habeas Corpus in the U.S. Constitution

The right of habeas corpus, also known as the great writ, is a legal procedure that prevents the government from holding an individual for an indefinite period without showing the reason. In this regard, when an individual challenges his or her detention by filing a habeas corpus petition, the executive branch of the government has no obligation but to give an explanation to a judge its justification for detaining the individual. Being a pillar of the Western law since the signing of the Magna Carta in 1215 inEngland, the habeas corpus was used to prevent the King from detaining his subjects in secret dungeons.

The habeas corpus is usually used to bring an individual who has been criminally convicted in state court into the federal court. In most cases, it is used to evaluate the legitimacy of an individual’s arrest, incarceration, or confinement. The review of a federal court a habeas petition is usually regarded as the collateral relief of a state court’s decision, instead of a direct review.

Today the habeas corpus is used as a post-conviction remedy for either state or federal prisoners who are likely to challenge the legitimacy of the execution of federal laws used in court trials, which may have resulted in their incarceration (LII, 2010). The habeas corpus is also used in immigration as well as deportation cases and issues to do with military detentions, convictions in military courts, and court proceedings before military commissions. These include cases like a satisfactory basis for confinement, removal to another federal district court, rejection of bail or parole, legitimacy of extradition to a foreign country, a claim of dual danger, as well as the failure to provide for a prompt trial or hearing (LII, 2010).

Habeas Corpus Relationship to the Protection of Other Civil Liberties

The purpose of the writ is not to determine whether a detainee is guilty of crime, which he or she is accused. Rather, it is a call that seeks to examine the legality of a detainee’s incarceration. It seeks to determine whether the due process was followed, or in the case if the judge intimidated the defendant. It also seeks to determine whether the jury was fiddled with, and if the prosecution concealed some evidence that are likely to vindicate the detainee.

In many ways, the due process is a group of constitutionally guaranteed rights, which guarantees a reasonable and prompt trial, the right to counsel, freedom from illegal search and seizure, trial by jury of peers as well as an appearance before the accusers of the detainee (Wert, 2011). In some cases, a constitution does not carry much weight in the case there are insufficient mechanisms in place to grant a way out to the individual, on the receiving end of such a guarantee.

In such a case, it is the habeas corpus that makes certain that the right to due process is carried out by action. In some cases, it can also be used as a last-ditch strategy in a criminal case. However, such a circumstance is only possible once all the appeal processes have been exhausted. For a court to review a habeas process there is the possibility of considering new evidence, whereas in the case of an appeal, no new evidence can be put forward. It is worth noting that the moment a habeas plea has been decided, there is no room for it to be debated again in regard to the same case.

The Historical Evolution of Habeas Corpus

Habeas corpus has an ancient history. It is predominantly Anglo-Saxon with its origins based on common law, prior to Magna Carta in 1215. Originally, it was the privilege injunction of the King and his judges. However, after several years, it has changed into a privilege writ, which can be initiated by an individual who has been restrained (Chemerinsky, 2009, 752-757).

The application of the right of habeas corpus was an established observance of law during the period of the Magna Carta, thus making it an essential element of the accepted common “law of the land” as explicitly acknowledged by Magna Carta (Chemerinsky, 2009, 752-757).

Before the adoption of the Constitution, habeas corpus has already existed. This came into effect following the proposal of Charles Pinckney, a delegate at the Constitutional Convention. His proposal was aimed at giving surety to the availability of habeas corpus.  As a result of a compromise, the Constitution inhibited its suspension, thus guaranteeing habeas corpus.

In the Judiciary Act of 1789, the assembly unequivocally provided for the federal courts to permit habeas corpus to federal convicts. However, the federal courts were in a position of issuing habeas corpus to state prisoners, thus forcing the Supreme Court to uphold its ability to evaluate the legitimacy of state criminal convictions with regard to direct appeal (Chemerinsky, 2009, 752-757). Following the Civil War, there was fear in the Congress on the fact that the Southern states would maltreat and obviously incarcerate former slaves.

Therefore, one of the most essential provisions of the Reconstruction Act was to permit federal courts to give habeas corpus to prisoners of the state, who were being held in contravention of the Constitution (Chemerinsky, 2009, 752-757). Over and above, the law was basically established on the consensus that there was mistrust regarding the Southern states and was therefore designed to allow federal courts to specially grant some kind of protection to former slaves from imprisonment.

In the first years of following the adoption of the Reconstruction Act, the application was restricted to situations, in which the defendant claimed that the sentencing courts were short of jurisdiction. However, the Supreme Court later extended the circumstances, under which a federal court could find a lack of state court authority and grant habeas corpus to a state prisoner.

The scope of habeas corpus however began to change following the Second World War (Farrell, 2009, 82-95). This came about because of the several pressures which demanded significant revision with regard to the philosophy of habeas corpus. This is mainly because the application of the Bill of Rights to the states through the process of integration extended the opportunity for the contravention of constitutional liberties by the state (Chemerinsky, 2009, 752-757).

Previously in the American history, the Bill of Rights was held by the Supreme Court to be inapplicable to state government actions. Thus, the expansion in the rights of offenders also created more opportunity for claims that individuals were detained in contravention of the Constitution. In this regard, the court interpreted the Constitution to provide additional procedural protections to criminal defendants. In each case, the basis for a habeas petition was placed in the case there was a claim of contravention.

The scope of habeas corpus also changed after the Second World War because of the nationwide awareness on civil rights (Farrell, 2009, 82-95). It was presumed that blacks in the South were being unlawfully deprived of their rights and therefore had inadequate protection in the state courts. In this way, in accordance with the Reconstruction Act, the habeas corpus was perceived to be a vehicle that could sustain and press forward the civil rights (Wert, 2011).

Examples from U.S. History of the "Suspension" of Habeas Corpus and their Applicability to the Present

According to habeas corpus, an individual may first be under the supervision of the power of the US, or required to stand trial before any US court. In this regard, the individual may also be in detention as a result of an action committed or omitted in pursuit of an action executed by Congress. Nevertheless, the process can be suspended in the case of national emergencies, invasion, or war (Osborne, 2008).

In 1861, the writ of habeas corpus was suspended by the President Abraham Lincoln during the Civil war as the President wanted to make sure that nothing would stand on the way of winning the war. He also suspended it in response to local militia, riots, as well as the threats to secession. Additionally, President Lincoln considered the survival of the Union more vital than the need for it to carry on in a legitimate manner (Osborne, 2008).

In 1864, the habeas corpus was again limited by the US Congress as a result of the security threats that were bedeviling the Union. These limitations were also applied when Lincoln executed this. It was different from the previous one executed by Lincoln since this time it had the support of the Congress. In should, however, be noted that it was not the writ that was held in suspension, but rather it was the right of the writ that was placed on hold.

In 2001, habeas corpus was again limited by President Bush (TRI, 2012). This took place after the terrorist attack on the United States on the September 11, 2001. According to him, he did this to ensure public safety, in addition to raising awareness on the Global War on Terror (TRI, 2012). In the same year the US Department of Justice advised the Pentagon to keep detainees in GuantanamoBay, away from the legal exposure. In this regard, the no review could be done on habeas corpus in light of the Guantanamo detainees, since it could intimidate the principles behind the Constitution (Jenkins, 2008, 306-328). 


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