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Habeas corpus in the United States

Habeas corpus in the United States

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Habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...

ˈheɪbiəs ˈkɔrpəs, Latin for "you [shall] have the body," is the name of a legal action or writ
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...

 by means of which detainees can seek relief from unlawful imprisonment. The Suspension Clause of the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

 specifically included the English common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 procedure in Article One
Article One of the United States Constitution
Article One of the United States Constitution describes the powers of Congress, the legislative branch of the federal government. The Article establishes the powers of and limitations on the Congress, consisting of a House of Representatives composed of Representatives, with each state gaining or...

, Section 9, clause 2, which demands that "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."

United States law affords persons the right to petition the federal courts for a writ of habeas corpus. Habeas corpus petitions are generally filed as pro se cases, and the government (state or federal) is usually ordered by the court to respond. Individual states also afford persons the ability to petition their own state court systems for habeas corpus pursuant to their respective constitutions and laws when held or sentenced by state authorities.

Federal habeas review did not extend to those in state custody until almost a century after the nation's founding. During the Civil War
American Civil War
The American Civil War was a civil war fought in the United States of America. In response to the election of Abraham Lincoln as President of the United States, 11 southern slave states declared their secession from the United States and formed the Confederate States of America ; the other 25...

 and Reconstruction, as later during the War on Terrorism
War on Terrorism
The War on Terror is a term commonly applied to an international military campaign led by the United States and the United Kingdom with the support of other North Atlantic Treaty Organisation as well as non-NATO countries...

, the right to petition for a writ of habeas corpus was substantially curtailed for persons accused of engaging in certain conduct. In reaction to the former, and to ensure state courts enforced federal law, a Reconstruction Act for the first time extended the right of federal court habeas review to those in the custody of state courts (prisons and jails), very greatly expanding the writ essentially to all imprisoned on American soil for the first time. The federal habeas statute that resulted, with substantial amendments, is now at . For many decades now, the great majority of habeas petitions reviewed in federal court have been filed by those imprisoned in state prisons by state courts for state crimes (e.g., murder, rape, robbery, etc.), since in the American system crime has historically been a matter of state law. Thus, habeas is a very interesting area for the relationship between federal and state courts and systems of laws, within the study of federalism
Federalism
Federalism is a political concept in which a group of members are bound together by covenant with a governing representative head. The term "federalism" is also used to describe a system of the government in which sovereignty is constitutionally divided between a central governing authority and...

.

The privilege of habeas corpus is not a right against unlawful arrest
Arrest
An arrest is the act of depriving a person of his or her liberty usually in relation to the purported investigation and prevention of crime and presenting into the criminal justice system or harm to oneself or others...

, but rather a right to be released from imprisonment after such arrest. If one believes the arrest is without legal merit and subsequently refuses to come willingly, he still may be guilty of resisting arrest
Resisting arrest
Resisting arrest is a term used to describe a criminal charge against an individual who has committed, depending on the jurisdiction, at least one of the following acts:* threatening a police officer with physical violence while being arrested...

, which can sometimes be a crime in and of itself (even if the initial arrest itself was illegal) depending on the state.

Origin


Habeas corpus derives from the English common law where the first recorded usage was in 1305, in the reign of King Edward I
Edward I of England
Edward I , also known as Edward Longshanks and the Hammer of the Scots, was King of England from 1272 to 1307. The first son of Henry III, Edward was involved early in the political intrigues of his father's reign, which included an outright rebellion by the English barons...

 of England. The procedure for the issuing of writs of habeas corpus was first codified by the Habeas Corpus Act 1679
Habeas Corpus Act 1679
The Habeas Corpus Act 1679 is an Act of the Parliament of England passed during the reign of King Charles II by what became known as the Habeas Corpus Parliament to define and strengthen the ancient prerogative writ of habeas corpus, whereby persons unlawfully detained cannot be ordered to be...

, following judicial rulings which had restricted the effectiveness of the writ. A previous act had been passed in 1640 to overturn a ruling that the command of the King was a sufficient answer to a petition of habeas corpus. Winston Churchill
Winston Churchill
Sir Winston Leonard Spencer-Churchill, was a predominantly Conservative British politician and statesman known for his leadership of the United Kingdom during the Second World War. He is widely regarded as one of the greatest wartime leaders of the century and served as Prime Minister twice...

, in his chapter on the English Common Law in The Birth of Britain, explains the process thus:
The writ of habeas corpus was issued by a superior court in the name of the Monarch, and commanded the addressee (a lower court, sheriff, or private subject) to produce the prisoner before the Royal courts of law. Petitions for habeas corpus could be made by the prisoner himself or by a third party on his behalf, and as a result of the Habeas Corpus Acts could be made regardless of whether the court was in session, by presenting the petition to a judge.

The 1678 Act remains important in 21st century cases. This Act and the historical body of British practice that relies upon it has been used to interpret the habeas rights granted by the United States Constitution, while taking into account the understanding of the writ held by the framers of the Constitution.

Federal law


The Suspension Clause of Article I does not expressly establish a right to the writ of habeas corpus; rather, it prevents the U.S. Congress from restricting it. There has been much scholarly debate over whether the Clause positively establishes a right under the federal constitution, merely exists to prevent Congress from prohibiting state courts from granting the writ, or protects a pre-existing common law right enforceable by federal judges. However, in the cases of Immigration and Naturalization Service v. St. Cyr
Immigration and Naturalization Service v. St. Cyr
Immigration and Naturalization Service v. St. Cyr, 533 U.S. 289 is a United States Supreme Court case involving habeas corpus relief for deportable aliens.- Facts :...

(2001), and Boumediene v. Bush
Boumediene v. Bush
Boumediene v. Bush, 553 U.S. 723 , was a writ of habeas corpus submission made in a civilian court of the United States on behalf of Lakhdar Boumediene, a naturalized citizen of Bosnia and Herzegovina, held in military detention by the United States at the Guantanamo Bay detention camps in Cuba...

(2008) the U.S. Supreme Court suggested that the Suspension Clause protects "the writ as it existed in 1789," that is, as a writ which federal judges could issue in the exercise of their common law authority.

Regardless of whether the writ is positively guaranteed by the constitution, habeas corpus was first established by statute in the Judiciary Act of 1789
Judiciary Act of 1789
The United States Judiciary Act of 1789 was a landmark statute adopted on September 24, 1789 in the first session of the First United States Congress establishing the U.S. federal judiciary...

. This statutory writ applied only to those held in custody by officials of the executive branch of the federal government and not to those held by state governments, which independently afford habeas corpus pursuant to their respective constitutions and laws. From 1789 until 1866, the federal writ of habeas corpus was largely restricted to prisoners in federal custody, at a time when no direct appeals from federal criminal convictions were provided for by law. Habeas corpus remained the only means for judicial review of federal capital convictions until 1889, and the only means for review of federal convictions for other "infamous crimes" until 1891. Until 1983 the writ of habeas corpus remained the only way that decisions of military courts could be reviewed by the Supreme Court.

The authority of federal courts to review the claims of prisoners in state custody was not clearly established until Congress adopted a statute (28 U.S.C. § 2254) granting federal courts that authority in 1867, as part of the post-Civil War Reconstruction. The U.S. Supreme Court in the case of Waley v. Johnson (1942) interpreted this authority broadly to allow the writ to be used to challenge convictions or sentences in violation of a defendant's constitutional rights where no other remedy was available.

The U.S. Congress grants federal district courts, the Supreme Court, and all Article III federal judges, acting in their own right, jurisdiction under 28 U.S.C. § 2241 to issue writs of habeas corpus to release prisoners held by any government entity within the country from custody, subject to certain limitations, if the prisoner
  • Is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or
  • Is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree court or judge of the United States; or
  • Is in custody in violation of the Constitution or laws or treaties of the United States; or
  • Being a citizen of a foreign state and domiciled therein is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, order or sanction of any foreign state, or under color thereof, the validity and effect of which depend upon the law of nations; or
  • It is necessary to bring said persons into court to testify or for trial.


In 1950s and 1960s, decisions by the Warren
Earl Warren
Earl Warren was the 14th Chief Justice of the United States.He is known for the sweeping decisions of the Warren Court, which ended school segregation and transformed many areas of American law, especially regarding the rights of the accused, ending public-school-sponsored prayer, and requiring...

 Supreme Court greatly expanded the use and scope of the federal writ largely due to the "constitutionalizing" of criminal procedure by applying the Bill of Rights, in part, to state courts using the incorporation doctrine. This afforded state prisoners many more opportunities to claim that their convictions were unconstitutional, which provided grounds for habeas corpus relief. In the last thirty years, decisions by the Burger and Rehnquist
William Rehnquist
William Hubbs Rehnquist was an American lawyer, jurist, and political figure who served as an Associate Justice on the Supreme Court of the United States and later as the 16th Chief Justice of the United States...

 Courts have somewhat narrowed the writ. The Antiterrorism and Effective Death Penalty Act of 1996
Antiterrorism and Effective Death Penalty Act of 1996
The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, is an act of Congress signed into law on April 24, 1996...

 (AEDPA) further limited the use of the federal writ by imposing a one-year statute of limitations and dramatically increasing the federal judiciary's deference to decisions previously made in state court proceedings either on appeal or in a state court habeas corpus action.

One of AEDPA's most controversial changes is the requirement that any constitutional right invoked to vacate a state court conviction rooted in a mistake of law by the state court must have "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." Thus, a U.S. Court of Appeals must ignore its own precedents and affirm a state court decision contrary to its precedents, if the U.S. Supreme Court has never squarely addressed a particular issue of federal law.

Presidential suspension of habeas corpus


On April 27, 1861, the writ of habeas corpus was suspended by President Abraham Lincoln
Abraham Lincoln
Abraham Lincoln was the 16th President of the United States, serving from March 1861 until his assassination in April 1865. He successfully led his country through a great constitutional, military and moral crisis – the American Civil War – preserving the Union, while ending slavery, and...

 in Maryland
Maryland
Maryland is a U.S. state located in the Mid Atlantic region of the United States, bordering Virginia, West Virginia, and the District of Columbia to its south and west; Pennsylvania to its north; and Delaware to its east...

 during the American Civil War
American Civil War
The American Civil War was a civil war fought in the United States of America. In response to the election of Abraham Lincoln as President of the United States, 11 southern slave states declared their secession from the United States and formed the Confederate States of America ; the other 25...

. Lincoln did so in response to riots, local militia actions, and the threat that the border slave state of Maryland would secede from the Union, leaving the nation's capital, Washington, D.C.
Washington, D.C.
Washington, D.C., formally the District of Columbia and commonly referred to as Washington, "the District", or simply D.C., is the capital of the United States. On July 16, 1790, the United States Congress approved the creation of a permanent national capital as permitted by the U.S. Constitution....

, surrounded by hostile territory. Lincoln chose to suspend the writ over a proposal to bombard Baltimore, favored by his General-in-Chief Winfield Scott. Lincoln was also motivated by requests by generals to set up military courts to rein in "Copperheads
Copperheads (politics)
The Copperheads were a vocal group of Democrats in the Northern United States who opposed the American Civil War, wanting an immediate peace settlement with the Confederates. Republicans started calling anti-war Democrats "Copperheads," likening them to the venomous snake...

," or Peace Democrats, and those in the Union who supported the Confederate
Confederate States of America
The Confederate States of America was a government set up from 1861 to 1865 by 11 Southern slave states of the United States of America that had declared their secession from the U.S...

 cause. Congress was not yet in session to consider a suspension of the writs.

His action was challenged in court and overturned by the U.S. Circuit Court in Maryland (led by the Chief Justice of the Supreme Court, Roger B. Taney
Roger B. Taney
Roger Brooke Taney was the fifth Chief Justice of the United States, holding that office from 1836 until his death in 1864. He was the first Roman Catholic to hold that office or sit on the Supreme Court of the United States. He was also the eleventh United States Attorney General. He is most...

) in Ex Parte Merryman
Ex parte Merryman
Ex parte Merryman, 17 F. Cas. 144 , is a well-known U.S. federal court case which arose out of the American Civil War. It was a test of the authority of the President to suspend "the privilege of the writ of habeas corpus"...

. Lincoln ignored Taney's order.

When Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....

 convened in July 1861, a joint resolution
Joint resolution
In the United States Congress, a joint resolution is a legislative measure that requires approval by the Senate and the House and is presented to the President for his/her approval or disapproval, in exactly the same case as a bill....

 was introduced into the Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...

 approving of the president's suspension of the writ of habeas corpus, but filibuster
Filibuster
A filibuster is a type of parliamentary procedure. Specifically, it is the right of an individual to extend debate, allowing a lone member to delay or entirely prevent a vote on a given proposal...

ing by Senate Democrats and opposition to its imprecise wording by Sen. Lyman Trumbull
Lyman Trumbull
Lyman Trumbull was a United States Senator from Illinois during the American Civil War, and co-author of the Thirteenth Amendment to the United States Constitution.-Education and early career:...

 prevented a vote on the resolution before the end of the first session, and the resolution was not taken up again. Sen. Trumbull himself introduced a bill to suspend habeas corpus, but could not get a vote before the end of the first session.

On February 14, 1862, Lincoln ordered most prisoners released, putting an end to court challenges for the time being. He again suspended habeas corpus on his own authority in September that same year, however, in response to resistance to his calling up of the militia
Militia (United States)
The role of militia, also known as military service and duty, in the United States is complex and has transformed over time.Spitzer, Robert J.: The Politics of Gun Control, Page 36. Chatham House Publishers, Inc., 1995. " The term militia can be used to describe any number of groups within the...

.

Congressional suspension of habeas corpus


When Congress met again in December 1862, the House of Representatives
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...

 passed a bill indemnifying the president for his suspension of habeas corpus. The Senate amended the bill, and the compromise reported out of the conference committee altered it to remove the indemnity and to suspend habeas corpus on Congress's own authority. That bill, the Habeas Corpus Suspension Act
Habeas Corpus Suspension Act 1863
The Habeas Corpus Suspension Act, , entitled An Act relating to Habeas Corpus, and regulating Judicial Proceedings in Certain Cases, was an Act of Congress that authorized the president of the United States to suspend the privilege of the writ of habeas corpus in response to the United States...

, was signed into law March 3, 1863. Lincoln exercised his powers under it in September, suspending habeas corpus throughout the Union in any case involving prisoners of war, spies, traitors, or military personnel, The suspension of habeas corpus remained in effect until Andrew Johnson
Andrew Johnson
Andrew Johnson was the 17th President of the United States . As Vice-President of the United States in 1865, he succeeded Abraham Lincoln following the latter's assassination. Johnson then presided over the initial and contentious Reconstruction era of the United States following the American...

 revoked it on December 1, 1865.

General Ambrose E. Burnside had former-Congressman Clement Vallandigham
Clement Vallandigham
Clement Laird Vallandigham was an Ohio resident of the Copperhead faction of anti-war Democrats during the American Civil War. He served two terms in the United States House of Representatives.-Biography:...

 arrested in May 1863 for continuing to express sympathy for the Confederate cause after having been warned to cease doing so. Vallandigham was tried by a military tribunal
Military tribunal
A military tribunal is a kind of military court designed to try members of enemy forces during wartime, operating outside the scope of conventional criminal and civil proceedings. The judges are military officers and fulfill the role of jurors...

 and sentenced to two years in a military prison. Lincoln quickly commuted
Commutation of sentence
Commutation of sentence involves the reduction of legal penalties, especially in terms of imprisonment. Unlike a pardon, a commutation does not nullify the conviction and is often conditional. Clemency is a similar term, meaning the lessening of the penalty of the crime without forgiving the crime...

 his sentence to banishment to the Confederacy. Vallandigham appealed his sentence, arguing that the Enrollment Act
Enrollment Act
The Enrollment Act, , enacted March 3, 1863, was legislation passed by the United States Congress during the American Civil War to provide fresh manpower for the Union Army. A form of conscription, the controversial act required the enrollment of every male citizen and those immigrants who had...

 did not authorize his trial by a military tribunal rather than in ordinary civilian courts, that he was not ordinarily subject to court martial, and that Gen. Burnside could not expand the jurisdiction of military courts on his own authority. The Supreme Court did not address the substance of Vallandigham's appeal, instead denying that it possessed the jurisdiction to review the proceedings of military tribunals without explicit congressional authorization.

In 1864, Lambdin P. Milligan
Lambdin P. Milligan
Lambdin Purdy Milligan was a lawyer, farmer, and a leader of the Knights of the Golden Circle during the American Civil War. In 1864, he was unlawfully given a capital sentence, and later set free by the United States Supreme Court, setting a precedent later named after him: Ex parte Milligan...

 and four others were accused of planning to steal Union weapons and invade Union prisoner-of-war camps and were sentenced to hang by a military court. However, their execution was not set until May 1865, so they were able to argue the case after the war ended. In Ex Parte Milligan
Ex parte Milligan
Ex parte Milligan, , was a United States Supreme Court case that ruled that the application of military tribunals to citizens when civilian courts are still operating is unconstitutional. It was also controversial because it was one of the first cases after the end of the American Civil...

(1866) the U.S. Supreme Court decided that Congress's 1863 suspension of the writ did not empower the President to try to convict citizens before military tribunals where the civil courts were open and operational. This was one of the key Supreme Court Cases of the American Civil War
Supreme Court cases of the American Civil War
A number of cases were tried before the Supreme Court of the United States during the period of the American Civil War. These cases focused on wartime civil liberties, and the ability of the various branches of the government to alter them...

 that dealt with wartime civil liberties and martial law.

In the Confederacy


In the Confederacy, Jefferson Davis
Jefferson Davis
Jefferson Finis Davis , also known as Jeff Davis, was an American statesman and leader of the Confederacy during the American Civil War, serving as President for its entire history. He was born in Kentucky to Samuel and Jane Davis...

 also suspended habeas corpus and imposed martial law. This was in part to maintain order and spur industrial growth in the South to compensate for the economic loss inflicted by its secession.

Suspension during Reconstruction


Following the end of the Civil War, numerous groups arose in the South to oppose Reconstruction, including the Ku Klux Klan
Ku Klux Klan
Ku Klux Klan, often abbreviated KKK and informally known as the Klan, is the name of three distinct past and present far-right organizations in the United States, which have advocated extremist reactionary currents such as white supremacy, white nationalism, and anti-immigration, historically...

. In response, Congress passed the Force Acts
Force Acts
Force Acts can refer to several groups of acts passed by the United States Congress. The term usually refers to the events after the American Civil War.-Andrew Jackson's Tariff Enforcement :The Force Bill, 4 Stat...

 in 1870–71. One of these, the Civil Rights Act of 1871
Civil Rights Act of 1871
The Civil Rights Act of 1871, , enacted April 20, 1871, is a federal law in force in the United States. The Act was originally enacted a few years after the American Civil War, along with the 1870 Force Act. One of the chief reasons for its passage was to protect southern blacks from the Ku Klux...

, permitted the president to suspend habeas corpus if conspiracies against federal authority were so violent that they could not be checked by ordinary means. That same year, President Ulysses S. Grant
Ulysses S. Grant
Ulysses S. Grant was the 18th President of the United States as well as military commander during the Civil War and post-war Reconstruction periods. Under Grant's command, the Union Army defeated the Confederate military and ended the Confederate States of America...

 suspended the writ of habeas corpus in nine South Carolina counties; the Act's sunset clause ended that suspension with the close of the next regular session of Congress.

Suspension in the Philippines



In response to continuing unrest, the Philippine Commission
Philippine Commission
The Philippine Commission was a body appointed by the President of the United States to exercise legislative and limited executive powers in the Philippines. It was first appointed by President William McKinley in 1901. Beginning in 1907, it acted as the upper house of a bicameral Philippine...

 availed itself of an option in the Philippine Organic Act of 1902
Philippine Organic Act (1902)
The Philippine Organic Act, popularly known as the Philippine Bill of 1902 and sometimes known as the Cooper Act after its author Henry A. Cooper, was the first organic law for the Philippines enacted by the United States Congress during the American Colonial Period in the Philippines...

, , and on January 31, 1905, requested that Governor-General
Governor-General of the Philippines
The Governor-General of the Philippines was the title of the government executive during the colonial period of the Philippines, governed mainly by Spain and the United States, and briefly by Great Britain, from 1565 to 1935....

 Luke Edward Wright
Luke Edward Wright
Luke Edward Wright was a United States political figure. He served as Governor-General of the Philippines between 1904 and 1906 and also as Secretary of War from 1908 to 1909.-Biography:...

 suspend the writ of habeas corpus. He did so the same day, and habeas corpus was suspended until he revoked his proclamation on October 15, 1905. The suspension gave rise to the United States Supreme Court case Fischer v. Baker, .

Habeas corpus during World War II


Immediately following the attack on Pearl Harbor
Attack on Pearl Harbor
The attack on Pearl Harbor was a surprise military strike conducted by the Imperial Japanese Navy against the United States naval base at Pearl Harbor, Hawaii, on the morning of December 7, 1941...

, the governor of Hawaii
Governor of Hawaii
The Governor of Hawaii is the chief executive of the state of Hawaii and its various agencies and departments, as provided in the Hawaii State Constitution Article V, Sections 1 through 6. It is a directly elected position, votes being cast by popular suffrage of residents of the state...

, Joseph Poindexter
Joseph Poindexter
Joseph Boyd Poindexter was the eighth Territorial Governor of Hawai'i and served from 1934 to 1942.-Early life:...

, invoked the Hawaiian Organic Act
Hawaiian Organic Act
The Hawaiian Organic Act of April 30, 1900 was a United States federal law enacted to provide a government for the territory of Hawaii.-Background:...

, (1900), suspended habeas corpus, and declared martial law
Martial law
Martial law is the imposition of military rule by military authorities over designated regions on an emergency basis— only temporary—when the civilian government or civilian authorities fail to function effectively , when there are extensive riots and protests, or when the disobedience of the law...

. Hawaii was governed by Lieutenant Generals Walter Short
Walter Short
Walter Campbell Short was a Major General in the United States Army and the U.S. military Commander responsible for the defense of U.S. military installations in Hawaii at the time of the Japanese attack on Pearl Harbor on December 7, 1941.-Early life:He was born in 1880 in Fillmore, Illinois...

, Delos Emmons, and Robert C. Richardson, Jr.
Robert C. Richardson, Jr.
Robert Charlwood Richardson, Jr., born in Charleston, South Carolina on October 27, 1882, and was admitted as a cadet at the United States Military Academy, from that state, on 19 June 1900. His military career spanned the first half of the 20th Century. He was a veteran of the 1904 Philippine...

 for the remainder of the war. In Duncan v. Kahanamoku
Duncan v. Kahanamoku
Duncan v. Kahanamoku, 327 U.S. 304 , was a decision by the United States Supreme Court. It is often associated with the Japanese exclusion cases Duncan v. Kahanamoku, 327 U.S. 304 (1946), was a decision by the United States Supreme Court. It is often associated with the Japanese exclusion cases...

, , the United States Supreme Court held that the declaration of martial law did not permit the trial of civilians in military tribunals for offenses unrelated to the military (in this case, public drunkenness).

In 1942, eight German saboteurs, including two U.S. citizens, who had entered the United States were convicted by a secret military court set up by President Franklin Delano Roosevelt. In Ex parte Quirin
Ex parte Quirin
Ex parte Quirin, , is a Supreme Court of the United States case that upheld the jurisdiction of a United States military tribunal over the trial of several Operation Pastorius German saboteurs in the United States...

(1942) the U.S. Supreme Court decided that the writ of habeas corpus did not apply, and that the military tribunal had jurisdiction to try the saboteurs, due to their status as unlawful combatant
Unlawful combatant
An unlawful combatant or unprivileged combatant/belligerent is a civilian who directly engages in armed conflict in violation of the laws of war. An unlawful combatant may be detained or prosecuted under the domestic law of the detaining state for such action.The Geneva Conventions apply in wars...

s.

In the aftermath of the Japanese attack on Pearl Harbor martial law was declared in Hawaii and habeas corpus was suspended, pursuant to a section of the Hawaiian Organic Act
Hawaiian Organic Act
The Hawaiian Organic Act of April 30, 1900 was a United States federal law enacted to provide a government for the territory of Hawaii.-Background:...

. The period of martial law in Hawaii ended in October 1944. It was held in Duncan v. Kahanamoku
Duncan v. Kahanamoku
Duncan v. Kahanamoku, 327 U.S. 304 , was a decision by the United States Supreme Court. It is often associated with the Japanese exclusion cases Duncan v. Kahanamoku, 327 U.S. 304 (1946), was a decision by the United States Supreme Court. It is often associated with the Japanese exclusion cases...

(1946) that although the initial imposition of martial law in December 1941 may have been lawful, due to the Pearl Harbor attack and threat of imminent invasion, by 1944 the imminent threat had receded and civilian courts could again function in Hawaii. The Organic Act therefore did not authorize the military to continue to keep civilian courts closed.

After the end of the war, several German prisoners held in American-occupied Germany petitioned the District Court for the District of Columbia for a writ of habeas corpus. In Johnson v. Eisentrager
Johnson v. Eisentrager
Johnson v. Eisentrager, 339 U.S. 763 , was a major decision of the U.S. Supreme Court, where it decided that U.S. courts had no jurisdiction over German war criminals held in a U.S.-administered German prison...

(1950) the U.S. Supreme Court decided that the American court system had no jurisdiction over German war criminals who had been captured in Germany, and had never entered U.S. soil.

Antiterrorism and Effective Death Penalty Act


In 1996, following the Oklahoma City bombing
Oklahoma City bombing
The Oklahoma City bombing was a terrorist bomb attack on the Alfred P. Murrah Federal Building in downtown Oklahoma City on April 19, 1995. It was the most destructive act of terrorism on American soil until the September 11, 2001 attacks. The Oklahoma blast claimed 168 lives, including 19...

, Congress passed (91–8–1 in the Senate, 293–133–7 in the House) and President Clinton
Bill Clinton
William Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...

 signed into law the Antiterrorism and Effective Death Penalty Act of 1996
Antiterrorism and Effective Death Penalty Act of 1996
The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, is an act of Congress signed into law on April 24, 1996...

 (AEDPA). The AEDPA was intended to "deter terrorism, provide justice for victims, provide for an effective death penalty, and for other purposes." The AEDPA introduced one of the few limitations on habeas corpus. For the first time, its Section 101 set a statute of limitations
Statute of limitations
A statute of limitations is an enactment in a common law legal system that sets the maximum time after an event that legal proceedings based on that event may be initiated...

 of one year following conviction for prisoners to seek the writ. The Act limits the power of federal judges to grant relief unless the state court's adjudication of the claim has resulted in a decision that
  1. Is contrary to, or has involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States; or
  2. Has resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.


It generally but not absolutely barred second or successive petitions, with several exceptions. Petitioners who had already filed a federal habeas petition were required first to secure authorization from the appropriate United States Court of Appeals, to ensure that such an exception was at least facially made out.

Habeas corpus in the 21st Century


The November 13, 2001 Presidential Military Order
Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism
On November 13, 2001 U.S. President George W. Bush issued a Military Order entitled Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.The order:#Defines which individuals the President considers subject to the order....

 purported to give the President of the United States
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....

 the power to detain non-citizens suspected of connection to terrorists or terrorism as enemy combatants. As such, that person could be held indefinitely, without charges being filed against him or her, without a court hearing, and without legal counsel. Many legal and constitutional scholars contended that these provisions were in direct opposition to habeas corpus, and the United States Bill of Rights
United States Bill of Rights
The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...

. However in Hamdi v. Rumsfeld
Hamdi v. Rumsfeld
Hamdi v. Rumsfeld, 542 U.S. 507 was a U.S. Supreme Court decision reversing the dismissal of a habeas corpus petition brought on behalf of Yaser Esam Hamdi, a U.S. citizen being detained indefinitely as an "illegal enemy combatant." The Court recognized the power of the government to detain enemy...

(2004) the U.S. Supreme Court re-confirmed the right of every American citizen to access habeas corpus even when declared to be an enemy combatant. The Court affirmed the basic principle that habeas corpus could not be revoked in the case of a citizen.

In Hamdan v. Rumsfeld
Hamdan v. Rumsfeld
Hamdan v. Rumsfeld, 548 U.S. 557 , is a case in which the Supreme Court of the United States held that military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military...

(2006) Salim Ahmed Hamdan
Salim Ahmed Hamdan
Salim Ahmed Hamdan is a Yemeni man, captured during the invasion of Afghanistan, and imprisoned at Guantanamo Bay. He admits to being Osama bin Laden's personal driver claiming he needed the $200 monthly salary that came with the job....

 petitioned for a writ of habeas corpus, challenging that the military commission
Guantanamo military commission
The Guantanamo military commissions are military tribunals created by the Military Commissions Act of 2006 for prosecuting detainees held in the United States Guantanamo Bay detainment camps.- History :...

s set up by the Bush administration
George W. Bush administration
The presidency of George W. Bush began on January 20, 2001, when he was inaugurated as the 43rd President of the United States of America. The oldest son of former president George H. W. Bush, George W...

 to try detainees at Guantanamo Bay
Guantanamo Bay detainment camp
The Guantanamo Bay detention camp is a detainment and interrogation facility of the United States located within Guantanamo Bay Naval Base, Cuba. The facility was established in 2002 by the Bush Administration to hold detainees from the war in Afghanistan and later Iraq...

 "violate both the UCMJ and the four Geneva Conventions
Geneva Conventions
The Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for the humanitarian treatment of the victims of war...

." In a 5-3 ruling the Court rejected Congress's attempts to strip the court of jurisdiction over habeas corpus appeals by detainees at Guantánamo Bay. Though Congress had previously passed the Department of Defense Appropriations Act, 2006
Detainee Treatment Act
The Detainee Treatment Act of 2005 is an Act of the United States Congress that prohibits inhumane treatment of prisoners, including prisoners at Guantanamo Bay; requires military interrogations to be performed according to the U.S...

  which stated in Section 1005(e), "Procedures for Status Review of Detainees Outside the United States":
On 29 September 2006, the U.S. House and Senate approved the Military Commissions Act of 2006
Military Commissions Act of 2006
The United States Military Commissions Act of 2006, also known as HR-6166, was an Act of Congress signed by President George W. Bush on October 17, 2006. Drafted in the wake of the Supreme Court's decision on Hamdan v...

, a bill which suspended habeas corpus for any alien determined to be an "unlawful enemy combatant
Enemy combatant
Enemy combatant is a term historically referring to members of the armed forces of the state with which another state is at war. Prior to 2008, the definition was: "Any person in an armed conflict who could be properly detained under the laws and customs of war." In the case of a civil war or an...

 engaged in hostilities or having supported hostilities against the United States" by a vote of 65-34. (This was the result on the bill to approve the military trials for detainees; an amendment to remove the suspension of habeas corpus failed 48-51.) President Bush signed the Military Commissions Act of 2006 (MCA) into law on October 17, 2006. With the MCA's passage, the law altered the language from "alien detained ... at Guantanamo Bay":
The Supreme Court ruled in Boumediene v. Bush
Boumediene v. Bush
Boumediene v. Bush, 553 U.S. 723 , was a writ of habeas corpus submission made in a civilian court of the United States on behalf of Lakhdar Boumediene, a naturalized citizen of Bosnia and Herzegovina, held in military detention by the United States at the Guantanamo Bay detention camps in Cuba...

 that the MCA amounts to an unconstitutional encroachment on habeas corpus rights, and established jurisdiction for federal courts to hear petitions for habeas corpus from Guantanamo detainees tried under the Act. Under the MCA, the law restricted habeas appeals for only those aliens detained as enemy combatants, or awaiting such determination. Left unchanged was the provision that, after such determination is made, it is subject to appeal in U.S. Court, including a review of whether the evidence warrants the determination. If the status was upheld, then their imprisonment was deemed lawful; if not, then the government could change the prisoner's status to something else, at which point the habeas restrictions no longer applied.
There is, however, no legal time limit which would force the government to provide a Combatant Status Review Tribunal hearing. Prisoners were, but are no longer, legally prohibited from petitioning any court for any reason before a CSRT hearing takes place.

In January 2007, Attorney General Alberto Gonzales
Alberto Gonzales
Alberto R. Gonzales was the 80th Attorney General of the United States. Gonzales was appointed to the post in February 2005 by President George W. Bush. Gonzales was the first Hispanic Attorney General in U.S. history and the highest-ranking Hispanic government official ever...

 told the Senate Judiciary Committee that in his opinion: "There is no express grant of habeas in the Constitution. There's a prohibition against taking it away." He was challenged by Sen. Arlen Specter who asked him to explain how it is possible to prohibit something from being taken away, without first being granted. Robert Parry wrotes in the Baltimore Chronicle & Sentinel:
The Department of Justice has taken the position in litigation that the Military Commissions Act of 2006 does not amount to a suspension of the writ of habeas corpus. The U.S. Court of Appeals for the D.C. Circuit agreed in a 2-1 decision, on February 20, 2007, which the U.S. Supreme Court initially declined to review. The U.S. Supreme Court then reversed its decision to deny review and took up the case in June 2007. In June 2008, the court ruled 5-4 that the act did suspend habeas and found it unconstitutional.

On June 7, 2007, the Habeas Corpus Restoration Act of 2007
Habeas Corpus Restoration Act of 2007
A bill, provisionally called the Habeas Corpus Restoration Act of 2007, , passed the United States Senate Judiciary Committee on Thursday, June 7, 2007.The bill was sponsored by Democratic Senator Patrick Leahy and Republican Senator Arlen Specter....

 was approved by the Senate Judiciary Committee with an 11–8 vote split along party lines, with all but one Republican
Republican Party (United States)
The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...

 voting against it. Although the Act would restore statutory habeas corpus to enemy combatants, it would not overturn the provisions of the AEDPA which set a statute of limitations on habeas corpus claims from ordinary civilian federal and state prisoners.

On June 11, 2007, a federal appeals court ruled that Ali Saleh Kahlah al-Marri
Ali Saleh Kahlah al-Marri
Ali Saleh Kahlah al-Marri is a citizen of Qatar who was arrested on charges of being a sleeper al Qaeda agent while studying at Bradley University in the United States. After denying any wrongdoing since his arrest, al-Marri pled guilty in a plea agreement to the federal charges on April 30, 2009...

, a legal resident of the United States, could not be detained indefinitely without charge. In a two-to-one ruling by the Fourth Circuit Court of Appeals, the Court held the President of the United States lacks legal authority to detain al-Marri without charge; all three judges ruled that al-Marri is entitled to traditional habeas corpus protections which give him the right to challenge his detainment in a U.S. Court.

In July 2008, the Richmond-based 4th Circuit Court rules: "if properly designated an enemy combatant pursuant to the legal authority of the President, such persons may be detained without charge or criminal proceedings for the duration of the relevant hostilities."

On October 7, 2008, US District Court judge
Ricardo M. Urbina ruled that 17 Uyghurs
Uyghur people
The Uyghur are a Turkic ethnic group living in Eastern and Central Asia. Today, Uyghurs live primarily in the Xinjiang Uyghur Autonomous Region in the People's Republic of China...

, Muslims
Islam
Islam . The most common are and .   : Arabic pronunciation varies regionally. The first vowel ranges from ~~. The second vowel ranges from ~~~...

 from China's northwestern Xinjiang
Xinjiang
Xinjiang is an autonomous region of the People's Republic of China. It is the largest Chinese administrative division and spans over 1.6 million km2...

 region, must be brought to appear in his court in Washington, DC, three days later:
"Because the Constitution prohibits indefinite detentions without cause, the continued detention is unlawful."

On January 21, 2009, US President Barack Obama issued an executive order regarding the Guantanamo Bay Naval Base and the individuals held there. This order asserted that "[they] have the constitutional privilege of the writ of habeas corpus".

Differences in post-trial actions


Habeas corpus is an action often taken after sentencing by a defendant who seeks relief for some perceived error in his criminal trial. There are a number of such post-trial actions and proceedings, their differences being potentially confusing, thus bearing some explanation. Some of the most common are an appeal to which the defendant has as a right, a writ of certiorari, a writ coram nobis and a writ of habeas corpus.

An appeal to which the defendant has a right cannot be abridged by the court which is, by designation of its jurisdiction, obligated to hear the appeal. In such an appeal, the appellant feels that some error has been made in his trial, necessitating an appeal. A matter of importance is the basis on which such an appeal might be filed: generally appeals as a matter of right may only address issues which were originally raised in trial (as evidenced by documentation in the official record). Any issue not raised in the original trial may not be considered on appeal and will be considered waived via estoppel
Estoppel
Estoppel in its broadest sense is a legal term referring to a series of legal and equitable doctrines that preclude "a person from denying or asserting anything to the contrary of that which has, in contemplation of law, been established as the truth, either by the acts of judicial or legislative...

. A convenient test for whether a petition is likely to succeed on the grounds of error is confirming that (1) a mistake was indeed made (2) an objection to that mistake was presented by counsel and (3) that mistake negatively affected the defendant’s trial.

A writ of certiorari, otherwise known simply as cert, is an order by a higher court directing a lower court to send record of a case for review, and is the next logical step in post-trial procedure. While states may have similar processes, a writ of cert is usually only issued, in the United States, by the Supreme Court, although some states retain this procedure. Unlike the aforementioned appeal, a writ of cert is not a matter of right. A writ of cert will have to be petitioned for, the higher court issuing such writs on limited bases according to constraints such as time. In another sense, a writ of cert is like an appeal in its constraints; it too may only seek relief on grounds raised in the original trial.

A petition for a writ coram nobis
Coram nobis
Coram nobis or coram vobis also known as error coram nobis or error coram vobis is a legal writ issued by a court to correct a previous error "of...

, is a post-judgment attack on the outcome of the case. It is made to the trial court and claims that there are errors requiring the court to set aside the verdict and/or the sentence. Use of the writ coram nobis varies from jurisdiction to jurisdiction. However, in most jurisdictions it is limited to situations where a direct appeal was not previously possible—usually because the issue was simply unknown at the time of appeal (that is, a "latent" issue) or because the issue otherwise could not be raised on appeal because of procedural barriers. A common basis for coram nobis petitions is the claim of ineffective assistance of counsel where the alleged ineffectiveness is not shown on the record of the court. In such cases, direct appeal is usually impossible because the critical events are not visible on the record where the appellate court can see them. Thus, a prompt coram nobis petition might be an important vehicle for a defendant to use.

A writ of habeas corpus is often the last opportunity for the defendant to find relief against his guilty conviction. Habeas corpus may be pursued if a defendant is unsatisfied with the outcome of his appeal and has been refused (or did not pursue) a writ of cert, at which point he may petition one of several courts for a writ of habeas corpus. Again, these are granted at the discretion of the court and require a petition. Like appeals or writs of cert, a writ of habeas corpus may overturn a defendant's guilty conviction by finding some error in the original trial. The major difference is that writs of habeas corpus may, and often, focus on issues that lay outside the original premises of the trial, i.e., issues that could not be raised by appeal or writs of cert. These often fall in two logical categories: (1) that the trial lawyer was ineffectual or incompetent or (2) that some constitutional right has been violated.

As one moves farther down the chain of post-trial actions, relief becomes progressively more unlikely. Knowing the differences between these actions and their intended use are an important tool in increasing one's chances for a favorable outcome. Use of a lawyer is therefore often considered advisable to aid one attempting to traverse the complex post-trial landscape.

Number of cases


In 2004, there were about 19,000 non-capital federal habeas corpus petitions filed and there were about 210 capital federal habeas corpus petitions filed in U.S. District Court. The vast majority of these were from state prisoners, not from those held in federal prisons. There are about 60 habeas corpus cases filed in the U.S. Supreme Court's original jurisdiction each year. The U.S. Courts of Appeal do not have original jurisdiction over habeas corpus petitions.

Types of cases in which petitions are filed


As of 1992, less than 1% of federal habeas corpus petitions involved death penalty sentences, although 21% involved life sentences. At that time about 23% had been convicted of homicide, about 39% had been convicted of other serious violent crimes, about 27% had been convicted of serious non-violent crimes, and about 12% were convicted of other offenses. These are almost exclusively state offenses and thus petitions filed by state prisoners.

Exhaustion of state-court remedies often takes five to ten years after a conviction, so only state prisoners facing longer prison sentences are able to avail themselves of federal habeas corpus rights without facing a summary dismissal for failure to exhaust state remedies. The lack of state remedies to exhaust also means that the timeline for federal death penalty habeas review is much shorter than the timeline for state death penalty habeas review (which can drag on literally for decades).

As of 2004, the percentage of federal habeas corpus petitions involving state death sentences was still about 1% of the total.

Success rates


About 63% of issues raised in habeas corpus petitions by state court prisoners are dismissed on procedural grounds at the U.S. District Court level, and about 35% of those issues are dismissed on the merits. About 2% are either "remanded" to a state court for further proceedings (which poses an interesting problem of federalism
Federalism
Federalism is a political concept in which a group of members are bound together by covenant with a governing representative head. The term "federalism" is also used to describe a system of the government in which sovereignty is constitutionally divided between a central governing authority and...

 – the federal court usually issues a writ to the state prison to release the prisoner, but only if the state court does not hold a certain proceeding within a certain time), or, far less frequently, resolved favorably to the prisoner on the merits outright. About 57% of habeas corpus issues dismissed on procedural grounds in 1992 were dismissed for a failure to exhaust state remedies.

Success rates are not uniform, however. James Liebman, Professor of Law at Columbia Law School, stated in 1996 that his study found that when habeas corpus petitions in death penalty cases were traced from conviction to completion of the case that there was "a 40 percent success rate in all capital cases from 1978 to 1995." Similarly, a study by Ronald Tabek in a law review article puts the success rate in habeas corpus cases involving death row inmates even higher, finding that between "1976 and 1991, approximately 47% of the habeas petitions filed by death row inmates were granted." Most habeas corpus petitioners in death penalty cases are represented by attorneys, but most habeas corpus petitioners in non-death penalty cases represent themselves. This is because federal funds are not available to non-capital state habeas petitioners to pay for attorneys unless there is good cause, there being no federal right to counsel in such matters. However, in state capital cases, the federal government provides funding for the representation of all capital habeas petitioners.

Thus, about 20% of successful habeas corpus petitions involve death penalty cases.

These success rates predate major revisions in habeas corpus law that restricted the availability of federal habeas corpus relief when AEDPA was adopted in 1996, over a decade ago. Post-AEDPA, the great disparity in success rates remains, however, with the federal courts' overturning of state capital cases a major reason that many states have been unable to carry out a majority of capital sentences imposed and have long backlog lists.

Disposition time


The time required to adjudicate habeas corpus petitions varies greatly based upon factors including the number of issues raised, whether the adjudication is on procedural grounds or on the merits, and the nature of the claims raised.

As of 1992, U.S. District Courts took an average of two and a half years to adjudicate habeas corpus petitions in death penalty cases raising multiple issues that were resolved on the merits, about half of long for other multiple issue homicide cases, and about nine months in cases resolved on procedural grounds.

AEDPA was designed to reduce the disposition times of federal habeas corpus petitions. But AEDPA has a little impact in non-capital cases, where a majority of cases are dismissed on procedural grounds, very few prisoners prevail and most prisoners are not represented by attorneys. The disposition time in capital cases has actually increased 250% from the time of AEDPA's passage to 2004.

Filing rates


As of 1991, the average number of federal habeas corpus petitions filed in the United States was 14 per 1,000 people in state prison, but this ranged greatly from state to state from a low of 4 per 1,000 in Rhode Island to a high of 37 per 1,000 in Missouri.

The Anti-Terrorism and Effective Death Penalty Act of 1996
Antiterrorism and Effective Death Penalty Act of 1996
The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, is an act of Congress signed into law on April 24, 1996...

(AEDPA) produced a brief surge in the number of habeas corpus filings by state prisoners, as deadlines imposed by the act encouraged prisoners to file sooner than they might have otherwise done so, but this had run its course by 2000, and by 2004, habeas corpus petition filing rates per 1,000 prisoners was similar to pre-AEDPA filing rates.

There was a temporary surge in habeas corpus petitions filed by federal prisoners in 2005 as a result of the Booker decision by the U.S. Supreme Court.

Further reading

  • Wert Justin J. Habeas Corpus in America: The Politics of Individual Rights (University Press of Kansas; 2011) 296 pages; how presidents, Congress, interest groups, legal scholars, and others have shaped it

External links