Friday, June 13, 2008

Habeas Corpus under Lincoln, Grant, F.D. Roosevelt, Truman, Clinton, and G.W. Bush

The Wikipedia article on habeas corpus cites several instances in which U.S. Presidents attempted to limit or rescind habeas corpus:

  • The U.S. Civil War (Abraham Lincoln)

  • Reconstruction (Ulysses S. Grant)

  • World War II (Franklin Delano Roosevelt)

  • Post World War II (Harry S Truman)

  • Post-Oklahoma City Bombing (Bill Clinton)

  • Post-9/11 (George W. Bush)
Suspensions of habeas corpus have affected everyone from suspected Ku Klux Klan members to suspected Al Qaeda members - talk about strange bedfellows.

But what the heck is habeas corpus? Here's how Nolo defines it:

Latin for "You have the body." A prisoner files a petition for writ of habeas corpus in order to challenge the authority of the prison or jail warden to continue to hold him. If the judge orders a hearing after reading the writ, the prisoner gets to argue that his confinement is illegal. These writs are frequently filed by convicted prisoners who challenge their conviction on the grounds that the trial attorney failed to prepare the defense and was incompetent. Prisoners sentenced to death also file habeas petitions challenging the constitutionality of the state death penalty law. Habeas writs are different from and do not replace appeals, which are arguments for reversal of a conviction based on claims that the judge conducted the trial improperly. Often, convicted prisoners file both.

It should be noted that it is possible to suspend the writ of habeas corpus. Article I, Section 9 of the U.S. Constitution explicitly states:

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.

Note that the Constitution explicitly uses the words "rebellion" or "invasion." As time has passed, U.S. Presidents have tended to me more elastic in how these two words are defined. By the time of Bill Clinton, the words had lost all meaning:

Once President Clinton signs the legislation approved today [April 19, 1996] by the House restricting appeals by death-row inmates and other prisoners, he will be imposing the most vigorous constraints on the constitutional right to seek Federal review of convictions since Lincoln suspended the writ of habeas corpus in the Civil War....

The legislation includes many provisions that the President wants and that civil rights groups find objectionable. For example, it would permit the Government to deport suspected terrorists without presenting a judge with the evidence used against them; it would authorize the Government to freeze the assets of foreign organizations that the Administration considers terrorist, and it would permit the Government to exclude foreigners who belong to suspected terrorist organizations from entering the United States, even if there is no evidence that they had broken the law.

Common Dreams, while noting Roosevelt's concentration camps, claims that there is a difference between what Bush has done and what prior Presidents have done:

President George W. Bush has not asked Congress for, and has not been granted, a suspension of habeas corpus for his so-called "war on terrorism," a "war" which he and his advisors have implied may last well beyond our lifetimes.

And why does Congress matter in this? Because the writ of habeas corpus is discussed in Article I of the Constitution, not Article II. (If you're rusty on your Constitution, the first article deals with the legislature, not the executive.)

Of course, Congress also has the power to declare war, but hasn't exercised that power since 1941. See my previous posts on that topic - the last of which also touches on Lincoln and habeas corpus.

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