Talk:Habeas corpus/Archive 1

Archive 1

Patriot Act comments in article

The article claims that the Patriot Act gives the President of the United States authority to claim ANYONE is an enemy combatant and lock them up without reason. Where is that in the Patriot Act? There is no mention of it on the Patriot Act article here. Searching the full text of the Patriot Act law on the Congress' website for "enemy combatant" comes up with nothing remotely similar to such a claim. This appears to me to be some left-over Zephram Stark nonsense. He felt a strong urge to claim that the Patriot Act destroyed Habeas Corpus (which he initially claimed was the right to be told you are being investigated). After having the true definition explained to him, he apparently ran over here to alter this article to fit with his anti-Patriot Act/anti-Bush POV. --Kainaw ^(talk) 15:44, 26 November 2005 (UTC)

Definition

I am not a lawyer. But I can tell you that it is impossible to understand what this habeas corpus is, what is its function. Who issues it, what happens when it is issued. I found this definition, clearer than the one given here, but it is copyrighted:

writ directed by a judge to some person who is detaining another, commanding him to bring the body of the person in his custody at a specified time to a specified place for a specified purpose. The writ's sole function is to release an individual from unlawful imprisonment; through this use it has come to be regarded as the great writ of liberty. The writ tests only whether a prisoner has been accorded due process, not whether he is guilty. The most common present-day usage of the writ is to appeal state criminal convictions to the federal courts when the petitioner believes his constitutional rights were violated by state procedure.

 That definition may be clearer, but I believe that it's not
 entirely accurate.  The writ is regularly used to test whether a
 prisoner is innocent, and the writ is not an "appeal" but an
 independent civil action. I have recently added some language
 to the article in an attempt to make it clearer. 
 --Ekimbrough 16:00, 7 December 2005 (UTC)

Unless the Constitution is amended, then the definition of this term is as it was defined at the time the Constitution was enacted, and the definition will come from Bouvier's Law Dictionary which is the authority on the terms used in the Constitution:

 HABEAS CORPUS, remedies. A writ of habeas corpus is an order in writing,
 signed by the judge who grants the same, and sealed with the seal of the
 court of he is a judge, issued in the name of the sovereign power where it
 is granted, by such a court or a judge thereof, having lawful authority to
 issue the same, directed to any one having a person in his custody or under
 his restraint, commanding him to produce, such person at a certain time and
 place, and to state the reasons why he is held in custody, or under
 restraint.
      2. This writ was it common law considered as a remedy to remove the
 illegal restraint on a freeman. But anterior to the 31 Charles II. its
 benefit was, in a great degree, eluded by time-serving judges, who awarded
 it only in term time, and who assumed a discretionary power of awarding or
 refusing it. 3 Bulstr. 23. Three or four years before that statute was
 passed there had been two very great cases much agitated in Westminster
 Hall, upon writs of habeas corpus for private custody, viz: the cases of
 Lord Lei-ah: 2 Lev; 128; and Sir Robert Viner, Lord Mayor.of London. 3
 Keble, 434, 447, 470, 504; 2 Lev. 128; Freem. 389. But the court has wisely
 drew the line of distinction between civil constitutional liberty, as
 opposed to the power of the crown, and liberty as opposed to the violence
 and power of private persons. Wilmot's Opinions, 85, 86.
      3. To secure the full benefit of it to the subject the statute 81 Car.
 II. c. 2, commonly called the habeas corpus act, was passed. This gave to
 the. writ the vigor, life, and efficacy requisite for the due protection of
 the liberty of the subject. In England this. is considered as a high
 prerogative writ, issuing out of the court of king's bench, in term time or
 vacation, and running into every part of the king's dominions. It is also
 grantable as a matter of right, ex debito justitae, upon the application of
 any person.
      4. The interdict De homine libero exhibendo of the Roman law, was a
 remedy very similar to the writ of habeas corpus. When a freeman was
 restrained by another, contrary to good faith, the praetor ordered that such
 person should be brought before him that he might be liberated. Dig. 43, 29,
 1.
      5. The habeas corpus act has been substantially incorporated into the
 jurisprudence of every state in the Union, and the right to the writ has
 been secured by most of the constitutions of the states, and of the United
 States. The statute of 31 Car. II. c. 2, provides that the person
 imprisoned, if he be not a prisoner convict, or in execution of legal
 process, or committed for treason or felony, plainly expressed in the
 warrant, or has not neglected willfully, by the space of two whole terms
 after his imprisonment, to pray a habeas corpus for his enlargement, may
 apply by any one in his behalf, in vacation time, to a judicial officer for
 the writ of habeas corpus, and the officer, upon view of the copy of the
 warrant of commitment, or upon proof of denial of it after due demand, must
 allow the writ to be directed to the person in whose custody the party is
 detained, and made returnable immediately before him. And, in term time, any
 of the said prisoners may obtain his writ of habeas corpus, by applying to
 the proper court.
      6. By the habeas corpus law of Pennsylvania, (the Act of February 18,
 1785,) the benefit of the writ of habeas corpus is given in "all cases where
 any person, not being committed or detained for any criminal, or supposed
 criminal matter," Who "shall be confined or restrained of his or her
 liberty, under any color or pretence whatsoever." A similar provision is
 contained in the habeas corpus act of New York. Act of April 21, 1818, sect.
 41, ch. 277.
      7. The Constitution of the United State art. 1, s. 9, n. 2, provides,
 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" and the same principle is contained in many of the state
 constitutions. In order still more to secure the citizen the benefit of this
 great writ, a heavy penalty is inflicted upon the judges who are bound to
 grant it, in case of refusal.
      8. It is proper to consider, 1. When it is to be granted. 2. How it is
 to be served. 3. What return is to be made to it. 4. The bearing. 5. The
 effect of the judgment upon it.
      9.-1. The writ is to be granted whenever a person is in actual
 confinement, committed or detained as aforesaid, either for a criminal
 charge, or, as in Pennsylvania and New York, in all cases where he is
 confined or restrained of his liberty, under any color or pretence
 whatsoever. But persons discharged on bail will not be considered as
 restrained of their liberty so as to be entitled to, a writ of habeas
 corpus, directed to their bail. 3 Yeates, R. 263; 1 Serg & Rawle, 356.
     10.-2. The writ may be served by any free person, by leaving it with
 the person to whom it is directed, or left at the gaol or prison with any of
 the under officers, under keepers, or deputy of the said officers or
 keepers. In Louisiana, it is provided, that if the person to whom it is
 addressed shall refuse to receive the writ, he who is charged to serve it,
 shall inform him of its contents; if he to whom the writ is addressed
 conceal himself, or refuse admittance to the person charged to serve it on
 him, the latter shall affix the order on the exterior of the place where the
 person resides, or in which the petitioner is so confined. Lo. Code of
 Pract. art. 803. The service is proved by the oath of the party making it.
     11.-3. The person to whom the writ is addressed or directed, is
 required to make a return to it, within the time prescribed; he either
 complies, or he does not. If, he complies, he must positively answer, 1.
 Whether he has or has not in his power or custody the person to be set at
 liberty, or whether that person is confined by him; if he return that he has
 not and has not had him in his power or custody, and the return is true, it
 is evident that a mistake was made in issuing the writ; if the return is
 false, he is liable to a penalty, and other punishment, for making such a,
 false return. If he return that he has such person in his custody, then he
 must show by his return, further, by what authority, and for what cause, he
 arrested or detained him. If he does not comply, he is to be considered in
 contempt of the court under whose seal the writ has been issued, and liable
 to a severe penalty, to be recovered by the party aggrieved.
     12.-4. When the prisoner is brought, before the judge, his judicial
 discretion commences, and he acts under no other responsibility than that
 which belongs to the exercise of ordinary judicial power. The judge or court
 before whom the prisoner is brought on a habeas corpus, examines the return
 and Papers, if any, referred to in it, and if no legal cause be shown for
 the imprisonment or restraint; or if it appear, although legally committed,
 he has not been prosecuted or tried within the periods required by law, or
 that, for any other cause, the imprisonment cannot be legally continued, the
 prisoner is discharged from custody. In the case of wives, children, and
 wards, all the court does, is to see that they ire under no illegal
 restraint. 1 Strange, 445; 2. Strange, 982; Wilmot's Opinions, 120.
     13. For those offences which are bailable, when the prisoner offers
 sufficient bail, he is to be bailed.
     14. He is to be remanded in the following cases: 1. When it appears he,
 is detained upon legal process, out of some court having jurisdiction of
 criminal matters, 2. When he is detained by warrant, under the hand and seal
 of a magistrate, for some offence for which, by law, the prisoner is not
 bailable. 3. When he is a convict in execution, or detained in execution by
 legal civil process. 4. When he is detained for a contempt, specially and
 plainly charged in the commitment, by some existing court, having authority
 to commit for contempt. 5. When he refuses or neglects to give the requisite
 bail in a case bailable of right. The judge is not confined to the return,
 but he is to examine into the causes of the imprisonment, and then he is to
 discharge, bail, or remand, as justice shall require. 2 Kent, Com. 26; Lo.
 Code of Prac. art. 819.
     15.-5. It is provided by the habeas corpus act, that a person set at
 liberty by the writ, shall not again be imprisoned for the same offence, by
 any person whomsoever, other than by the legal order and process of such
 court wherein he shall be bound by recognizance to appear, or other court
 having jurisdiction of the cause. 4 Johns. R. 318; 1 Binn. 374; 5 John. R.
 282.
     16. The habeas corpus can be suspended only by authority of the
 legislature. The constitution of the United States provides, that the
 privilege of the writ of habeas corpus shall not be suspended unless when,
 in cases of invasion and rebellion, the public safety may require it.
 Whether this writ ought to be suspended depends on political considerations,
 of which the legislature, is to decide. 4 Cranch, 101. The proclamation of a
 military chief, declaring martial law, cannot, therefore, suspend the
 operation of the law. 1 Harr. Cond. Rep. Lo. 157, 159 3 Mart. Lo. R. 531.
     17. There are various kinds of this writ; the principal of which are
 explained below.
     18. Habeas corpus ad deliberandum et recipiendum, is a writ which lies
 to remove a prisoner to take his trial in the county where the offence was
 committed. Bac. Ab. Habeas Corpus, A.
     19. Habeas corpus ad faciendum et recipiendum, is a writ which issues
 out of a court of competent jurisdiction, when a person is sued in an
 inferior court, commanding the inferior judges to produce the body of the
 defendant, together with the day and cause of his caption and detainer,
 (whence this writ is frequently denominated habeas corpus cum causa) to do
 and receive whatever the court or the judge issuing the writ shall consider
 in that behalf. This writ may also be issued by the bail of a prisoner, who
 has been taken upon a criminal accusation, in order to surrender him in his
 own discharge; upon. the return of this writ, the court will cause an
 exoneretur to be entered on the bail piece, and remand the prisoner to his
 former custody. Tidd's Pr. 405; 1 Chit. Cr. Law, 182.
     20. Habeas corpus ad prosequendum, is a writ which issues for the
 purpose of removing a prisoner in order to prosecute. 3 Bl. Com. 130.
     21. Habeas corpus ad respondendum, is a writ which issues at the
 instance of a creditor, or one who has a cause of action against a person
 who is confined by the process of some inferior court, in order to remove
 the prisoner and charge him with this new action in the court above. 2 Mod.
 198; 3 Bl. Com. 107.
     22. Habeas corpus ad satisfaciendum, is a writ issued at the instance of
 a plaintiff for the purpose of bringing up a prisoner, against whom a
 judgment has been rendered, in a superior court to charge him with the
 process of execution. 2 Lill. Pr. Reg. 4; 3 Bl. Com. 129, 130.
     23. Habeas corpus ad subjiciendum, by way of eminence called the writ of
 habeas corpus, (q.v.) is a writ directed to the person detaining another,
 and commanding him to produce the body of the prisoner, with the day and
 cause of his caption and detention, ad faciendum, subjiciendum, et
 recipiendum, to do, submit to, and receive, whatsoever the judge or court
 awarding such writ shall consider in that behalf. 3 Bl. Com. 131; 3 Story,
 Const. Sec. 1333.
     24. Habeas corpus ad testificandum, a writ issued for the purpose of
 bringing a prisoner, in order that he may testify, before the court. 3 Bl.
 Com. 130.
     25. Habeas corpus cum causa, is a writ which may be issued by the bail
 of a prisoner, who has been taken upon a criminal accusation, in order to
 render him in their own discharge. Tidd's Pr. 405. Upon the return of this
 writ the court will cause an exoneretur to be entered on the bail piece, and
 remand the defendant to his former custody. Id. ibid.; 1 Chit. Cr. Law 132.
 Vide, generally, Bac. Ab. h.t.; Vin. Ab. h.t.; Com. Dig. h.t.; Nels. Ab.
 h.t.; the various American Digests, h.t.; Lo. Code of Prac. art. 791 to
 827; Dane's Ab. Index, h.t.; Bouv. Inst. Index, h.t.fine

If people could ~~~~ [[%7e%7e%7e%7e]] wikipedia :sign sign ,...

Further information: wikipedia :sign

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hopiakuta 16:41, 29 September 2006 (UTC)

Is it consensus that the senate voted against "habeas" last night, @ least partially??

hopiakuta 16:41, 29 September 2006 (UTC)

< http://en.wikipedia.org/w/index.php?title=Talk:Habeas_corpus&diff=78527605&oldid=77428192 >.

hopiakuta 16:51, 29 September 2006 (UTC)

< http://digbysblog.blogspot.com >.

hopiakuta 19:06, 29 September 2006 (UTC)

< http://digbysblog.blogspot.com/2006_09_01_digbysblog_archive.html#115953279697963927 >.

hopiakuta 19:10, 29 September 2006 (UTC)

References

Only two references (apart from "further reading on historical background") from an article of this length? Andjam 12:19, 6 April 2006 (UTC)

There were five references that I just fixed. [1] The old style wasn't working: the "[n]" links appeared, but the #_note-n targets didn't exist and the URLs referenced didn't appear anywhere on the page. I don't know why exactly, but after scanning Help:URL and Wikipedia:Template_messages/Sources_of_articles/Generic_citations I fixed them the way that looked right to me. Now at least they work. JamieMcCarthy 15:15, 20 October 2006 (UTC)

Other countires

Other non-common-law countries have similar concepts of not being detained without the supervision of a judge. There should be a link to the corresponding article.

Ssssssssssssssssssssign!

hopiakuta ; [[ <nowiki> </nowiki> { [[%c2%a1]] [[%c2%bf]] [[ %7e%7e%7e%7e ]] } ;]] 04:57, 27 October 2006 (UTC)

Citizens?

"...for a writ of habeas corpus filed by or on behalf of an alien detained,..."

"...The trial of civilians by military tribunals is allowed only if civilian courts are closed."

"...eight of the nine justices affirmed the basic principle that habeas corpus of a citizen could not be revoked."

However, some people are saying that citizens are, in fact, included.

What about that?

Thank You.

hopiakuta ; [[ <nowiki> </nowiki> { [[%c2%a1]] [[%c2%bf]] [[ %7e%7e%7e%7e ]] } ;]] 04:57, 27 October 2006 (UTC)

• Magna Carta Libertatum;

Habeas Corpus Act;

Habeas Corpus Act 1679.

Indian-Briton, Moazzam_Begged f/ habeas.

Maher_Arar, Syrian-Canadian was sheared.

So, what democracy corpus do we continue to habeas?

hopiakuta ; [[ <nowiki> </nowiki> { [[%c2%a1]] [[%c2%bf]] [[ %7e%7e%7e%7e ]] } ;]] 06:14, 27 October 2006 (UTC)

"If we're an arrogant nation, they'll resent us; if we're a humble nation, but strong, they'll welcome us. And our nation stands alone right now in the world in terms of power, and that's why we've got to be humble, and yet project strength in a way that promotes freedom."

< http://pbs.org/newshour/bb/politics/july-dec00/for-policy_10-12.html >;

the_Vulcans.

hopiakuta ; [[ <nowiki> </nowiki> { [[%c2%a1]] [[%c2%bf]] [[ %7e%7e%7e%7e ]] } ;]] 06:32, 27 October 2006 (UTC)

¡ ¿ [[ %7e%7e%7e%7e ]]

When you don't sign, you can cause

stress_and_duress

for many of us.

hopiakuta ; [[ <nowiki> </nowiki> { [[%c2%a1]] [[%c2%bf]] [[ %7e%7e%7e%7e ]] } ;]] 13:59, 8 November 2006 (UTC)

Habeas Corpus and non-citizens

The claim is made that "the Constitution clearly gives Congress that right [to suspend habeas corpus for non-citizens.]" A reference to the line that gives them that right would be useful, since the only mention of habeas corpus in the Constitution says exactly the opposite.: Article 1, Section 9: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.

Commentary by Bruce Ackerman and Marty Lederman was added which in my opinion is irrelevant to the topic of this article. This information was added to support the also-added claim that "the Military Commissions Act does affect American citizens." This is of course true. However, as the MCA is written, suspension of habeas corpus does not affect American citizens. This is very clear in the law. Apparently there is some misunderstanding out there -- I've already reverted one error to that effect. So, I have removed the text about the MCA which is not directly related to habeas matters: the Ackerman quote is about the Bill of Rights, while habeas is guaranteed in Article I, Section 9; the Lederman quote is about enemy-combatant status which only relates to habeas rights for noncitizens. I suggest that the Ackerman/Lederman text should be considered for Military Commissions Act of 2006 but it is not relevant here. JamieMcCarthy 13:56, 24 October 2006 (UTC)

This needs to be changed again. It only applies to "aliens," not to American citizens. Zz414 17:09, 11 November 2006 (UTC)

POV sources

This article is not entitled "criticism of the Military Commissions Act." It's about habeas corpus. A series of links, some posted two or three times, are singularly directed at attacking the Military Commissions Act. While a sentence or an article may be sufficient to note that some dislike the Military Commissions Act, it would be more appropriate to address such criticism in that article and not in the general article about habeas. Some of more egregious sources: the Center for Constitutional Rights, which is an advocacy organization and therefore argues one side of the issue, and an article from its president; a blog; an opinion piece criticizing the Act because it is not moderate; a piece from a self-described "progressive" site; an editorial from a site that, among other things, hails "Democrats Sweep US Congress in Election Triumph"; and a piece from a site whose front page advocates the impeachment of President Bush. These articles are not neutral. The mere fact that some critical of the MCA does not mean that several links of opinions, editorials, and advocacy groups are permissible. This is POV, and does not belong in the article. Zz414 01:30, 16 November 2006 (UTC)

• Apparently you have some misconceptions regarding wikipedia, sp please consider the following.

Regarding wikipedia policy on the use of sources:

• WP:NPOV: The policy requires that, where there are or have been conflicting views, these are fairly presented, but not asserted. All significant points of view are presented, not just the most popular one. It is not asserted that the most popular view or some sort of intermediate view among the different views is the correct one. Readers are left to form their own opinions.

• Feel free to read about Wikipedia:Guidelines for controversial articles: An article about a controversial person or group should accurately describe their views, no matter how misguided or repugnant. Remember to ask the question, "How can this controversy best be described?" It is not our job to edit Wikipedia so that it reflects our own idiosyncratic views and then defend those edits against all comers; it is our job to be fair to all sides of a controversy.

• The use of biased sources is allowed, Reliable sources: Do they have an agenda or conflict of interest, strong views, or other bias which may color their report? Remember that conflicts of interest are not always explicitly exposed and bias is not always self-evident. However, that a source has strong views is not necessarily a reason not to use it, although editors should avoid using political groups with widely acknowledged extremist views, like Stormfront.org or the Socialist Workers Party.

• Partisan sites are not excluded from use, Partisan websites: Partisan political and religious sources should be treated with caution, although political bias is not in itself a reason not to use a source.

• The use of legal experts seems to be encouraged, Beware false authority: Use sources who have postgraduate degrees or demonstrable published expertise in the field they are discussing. The more reputable ones are affiliated with academic institutions.

• Neutral language When a fact is not common knowledge, or when the information being related is a subjective assessment, like the result of a particular poll, the information should be attributed and cited.

• Balance An article can be written in neutral language and yet omit important points of view. Such an article should be considered an NPOV work in progress, not an irredeemable piece of propaganda. Often an author presents one POV because it's the only one that he or she knows well. The remedy is to add to the article—not to subtract from it.
  • 1 There is no rule prohibiting POV-sources, indeed any article which is considered POV should have information added and not deleted.
  • 2 Clearly you have missed the entire point of the MCA. By denying habeas corpus to enemy combatants and by not having a mandatory review of their status this effectively means that as long as they are UEC (which can be forever) they have no right to habeas corpus. This is what my more than wellsourced addition said. You have given no argument why this is incorrect, or even why the sources presented violate WP:RS (see the above summary of WP-policy).--80.61.35.57 02:02, 16 November 2006 (UTC)

WP does state that neutral sources should be cited in support of the proposition. No effort has been made to use neutral sources. Indeed, the sources cited are, again, advocacy positions and editorials. Also, it fails the undue weight requirement, where the article becomes focused on the criticisms of the MCA rather than a piece explaining habeas generally. Additionally, criticism of the MCA is more appropriate for the MCA's page, and not to fill the habeas page with the minutiae of criticism. Finally, the Department of Defense has directly addressed the claims made, claims that existed before the MCA and are being restated after the MCA's passage, that the government could detain individuals indefinitely, and it rejected that mischaracterization of the President's war powers.[2] If you find that some of the criticisms are appropriate and well-cited for the MCA, then by all means place them there. Otherwise, they're inappropriate for this article. Zz414 02:18, 16 November 2006 (UTC)

Blank article

ya... blank article, not cool. if I knew how to work wikipedia better I'd try to bring it back, but it's just a blank article —Preceding unsigned comment added by REsplin (talk • contribs) 17:55, 1 December 2006

Hi REsplin. Thanks for noticing that. I fixed it. Just review the history, select the correct version, then save it (ignore the warning about saving a prior verson). Anyway, welcome! As a member of the Wikipedia community. You may be interested in reading The five pillars of Wikipedia, our Help pages, the Tutorial, the policy on citing sources, and our Manual of Style. I hope you enjoy editing here and being a Wikipedian! Please sign your name on talk pages using four tildes (~~~~); this will automatically produce your name and the date. If you have any questions, check out Wikipedia:Where to ask a question or ask me on my talk page. Again, welcome!

-- Bhuston 23:41, 1 December 2006 (UTC)

Civil vs. criminal question

Wondering about why exactly the writ of habeas corpus is considered a civil matter. I understand that in present-day usage in the US, it's mostly used (as the definition copied above says) to "appeal" state court criminal convictions to the federal court, basically to claim that some constitutional claims were violated. I also understand that constitutional claims are classified as "civil actions." In other words, perhaps this little syllogism applies: "All constitutional claims are civil actions, habeas corpus stems from a constitutional claim, therefore habeas corpus is civil." The problem I have with this is - what does the civil nature of it really mean? Typically, the criminal vs. civil distinction often involves looking at one or more of several distinctions (type of punishment allowed, as things like prison time may apply to criminal proceedings; mens rea and actus reus for criminal actions; burden of proof, which is "preponderance of the evidence" - 51% - in civil cases, and beyond a reasonable doubt in criminal), but which aspects apply here? Does the burden of proof apply? For instance, if it is more likely than not that the constitutional rights of the prisoner were violated, the writ will be granted? Note that the writ being granted is not equivalent to overturning the conviction by any means so this lower burden of proof might make sense - i.e. if the constitutional claims were more likely than not violated, we grant the writ; and only then does the conviction get evaluated with the correct burden of proof, in a separate proceeding (conviction must be upheld if the evidence against the defendant shows he/she did it beyond a reasonable doubt). Is my understanding of how the civil aspect applies (in the burden of proof dimension) correct?

An alternative answer of why the civil aspect applies is just the fact that since it is not a criminal action, it is civil. The reason it is not criminal is that for example, the prisoner (who I'm assuming is the plaintiff in a habeas petition hearing - this is correct, right?) could be suing the director of the Department of Corrections in a state, and as far as I know, the director will not be facing a criminal accusation here. The director of the DOC will not be accused of willfully and knowingly etc. etc., and he cannot go to jail for infringing on the prisoner's constitutionally rights. So, since it's not criminal, it's civil. Is this right?

Also, keep in mind that the grounds for the petition are often identical to the grounds that would be used if a direct appeal to the conviction were pursued instead, as in:

Citation: 1973 U.S. App. LEXIS 9100

Name: Darrell Eugene CARLTON, # 166802, Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee

Procedural Posture (taken from lexis.com): Appellant, convicted of rape, sought review of a decision of the United States District Court for the Southern District of Texas. He alleged that a warrantless search of his automobile was unreasonable under U.S. Const. amend. IV.

The beginning of the opinion reads: At appellant's state trial for rape the prosecution introduced evidence which derived from a warrantless search of his automobile. There was no direct appeal from his conviction, but appellant pursued collateral state remedies and ultimately petitioned the district court for a writ of habeas corpus. He alleged that the warrantless search of his automobile had been unreasonable under the Fourth Amendment. The district court denied relief. We affirm.

I added the emphasis in order to show that the prisoner could have used hte same grounds (warrantless search) for a direct appeal rather than for a petition for a writ of habeas corpus.

Please let me know if you have any thoughts on why petitioning for a writ of habeas corpus is a civil matter. Also, if you have any thoughts on why this route is pursued rather than (or in addition to, if possible?) a direct appeal. Expanding the parenthetical question - can a prisoner receive a state court conviction, appeal in state court, and then petition for a writ of habeas corpus at the federal level? I am unclear on this.

Thanks again.

Borntostorm 19:59, 15 January 2007 (UTC)

Gonzales statement

I have difficulty justifying inclusion of Gonzales's statement without it appearing POV. It's a single statement in a single hearing by a government officer, and one that won't have any lasting ramifications beyond some media hounding for a bit. In an article about habeas corpus, it's relatively insignificant what the attorney general once testified in a Senate hearing. Unless it becomes a more significant element of the Bush administration or part of some official promulgation, it's just an exchange from a Senate testimony and should be excluded as insignificant at best and POV at worst. Zz414 17:57, 30 January 2007 (UTC)

The Attorney General is the senior legal officer in the Executive. He testified under oath as to his unusual understanding of the constitutional status of habeas corpus, namely that it may not be guaranteed even for citizens by the Constitution. That strikes me as quite notable in itself. Furthermore, there is the very real possibility that this understanding may be reflected in how the Executive is interpreting its legal and constitutional duties, e.g. with respect to Guantanamo (indeed, this is the context in which Gonzales offered this analysis). I don't see why the fact that it is one person saying this once is all that relevant. By the way, can we find a recent on the record statement from someone in the Department of Justice contradicting this interpretation? If so, then it might be more relevant as to who is saying what and how consistently. Otherwise, I don't see your point. Crust 18:12, 30 January 2007 (UTC)

PS I doubt this was some off-the-cuff remark. Gonzales is not shy about saying "I'll get back to you" or "I have to ask my principal [i.e. the President]" on other matters in his Senate testimony. For context here's the full transcript[3] of this discussion:

“ SPECTER: Where you have the Constitution having an explicit provision that the writ of habeas corpus cannot be suspended except for rebellion or invasion, and you have the Supreme Court saying that habeas corpus rights apply to Guantanamo detainees — aliens in Guantanamo — after an elaborate discussion as to why, how can the statutory taking of habeas corpus — when there’s an express constitutional provision that it can’t be suspended, and an explicit Supreme Court holding that it applies to Guantanamo alien detainees.

GONZALES: A couple things, Senator. I believe that the Supreme Court case you’re referring to dealt only with the statutory right to habeas, not the constitutional right to habeas.

SPECTER: Well, you’re not right about that. It’s plain on its face they are talking about the constitutional right to habeas corpus. They talk about habeas corpus being guaranteed by the Constitution, except in cases of an invasion or rebellion. They talk about John, [Runnymede] and the Magna Carta and the doctrine being imbedded in the Constitution.

GONZALES: Well, sir, the fact that they may have talked about the constitutional right to habeas doesn’t mean that the decision dealt with that constitutional right to habeas.

SPECTER: When did you last read the case?

GONZALES: It has been a while, but I’ll be happy to — I will go back and look at it.

SPECTER: I looked at it yesterday and this morning again.

GONZALES: I will go back and look at it. The fact that the Constitution — again, there is no express grant of habeas in the Constitution. There is a prohibition against taking it away. But it’s never been the case, and I’m not a Supreme —

SPECTER: Now, wait a minute. Wait a minute. The constitution says you can’t take it away, except in the case of rebellion or invasion. Doesn’t that mean you have the right of habeas corpus, unless there is an invasion or rebellion?

GONZALES: I meant by that comment, the Constitution doesn’t say, “Every individual in the United States or every citizen is hereby granted or assured the right to habeas.” It doesn’t say that. It simply says the right of habeas corpus shall not be suspended except by —

SPECTER: You may be treading on your interdiction and violating common sense, Mr. Attorney General.

GONZALES: Um.

”

Crust 18:24, 30 January 2007 (UTC)

First, in the hearing, Gonzales qualified his statement on several grounds. He emphasized that the Constitution states that "there is a prohibition against taking it away," and he was explaining what the plain text of the Constitution does and does not indicate in others. In the same hearing, he also called it "one of our most cherished rights." Yes, he used the word "right." The quotation could just as easily say, "Gonzales maintained that the only discussion of habeas corpus in the Constitution was a prohibition on taking it away." That's POV pro-Gonzales. The way it's presented now, "Gonzales asserted in Senate testimony that the United States Constitution does not expressly guarantee habeas rights to United States residents or citizens," is POV anti-Gonzales. Notably, the excerpt from the left-leaning blog does not include much of that context.

Second, on a technical matter Gonzales's statement is correct. The Constitution does not define the nature of habeas, and it does not define the class of people who may petition for the writ. But in the context of the way the media's picked it up, and without the whole context of the hearing, it appears "shocking," and therefore has been picked up widely. His statement was that the Constitution does not "expressly" grant a right of habeas corpus, which, as a technical matter (and only as a technical matter) is correct.

Third, no one in the Department of Justice is going to contradict Gonzales, because he runs the department.

Fourth, he did not say that it "may not be guaranteed even for citizens." He said it's not "expressly" guaranteed. There's a world of difference between those two.

Finally, "notability" doesn't mean it's not POV or undue weight. I would contest with this even appearing in this article; and if it must, based on consensus from future people who enter to evaluate, it should include the actual language of Gonzales and the greater context of the situation, and not just a snippet parroting a media report that's POV. Zz414 18:32, 30 January 2007 (UTC)

Zz414, thanks for the reply.

Re your first point: The quote above actually does include "there is a prohibition against taking it away." Re rights: he seems to be making a distinction between a statutory right to habeas corpus (which could be overriden by subsequent statute, e.g. the MCA) and a constitutional right (which could not).

Re your second point: I don't think Gonzales was making some cute technical point about word choice in the Constitution. See above re constitutional vs. statutory rights.

Re your third point: Well, if he's been misunderstood, Gonzales may retract/clarify. Or perhaps someone at the DoJ is already on the record.

Re your fourth point: Note that "expressly" was already in the wording I used ("On January 17, 2007, Attorney General Gonzales asserted in Senate testimony that the United States Constitution does not expressly guarantee habeas rights to United States residents or citizens.")

Re fifth point: Probably the best thing to do would to be include a quote from Gonzales. I didn't only in the interest of brevity. Crust 18:59, 30 January 2007 (UTC)

Introduction

Habeas Corpus is not exclusive to common law countries, 2 examples, Spain and Portugal are already in the article and both use the civil code. In Portugal the petition is brought straight to the Supreme Court of Justice independently. If the petition is denied (sorry, lacking better words) the cost is currently 5 accounting units ≈ 480Euro Galf 19:50, 23 March 2007 (UTC)

Australian Anti-Terror laws

I think the Australian section needs a re-write. I have deleted some of the lines which seem to imply that Australia is becoming a fascist "Police State". Also since these laws are being debated right now, it is probably best to wait if/when they are actually passed before commenting on how they may or may not abolish habeas corpus. --Peter 22:50, 26 October 2005 (UTC)

I think the Anti-terror laws were successfully passed through. I seem to remember Labour voted for it too, while the Democrats and the Greens opposed it. Wikiphyte 16:32, 10 May 2007 (UTC)

Exact translation

Should "Habeas corpus" truly be, "You shall have the body?

LtDonny 23:17, 22 January 2007 (UTC)

No, habeas is the present subjunctive, not the future tense. The second person singular future is habebis. Roughly translated habeas means "you may have", but more fully the writ habeas corpus (ad subjiciendum) means "You may have the body (to be submitted [for examination])". --ukexpat 14:20, 16 November 2007 (UTC)

Habeas corpus and the War on Terrorism

The section titled "Suspension during the War on Terrorism" contains a couple of inaccuracies. First, the Supreme Court has determined that Guantanamo detainees do have the right to file a habeas petition (in Rasul v. Bush). Further, the Presidential Military Order ("Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism") was issued on November 13, 2001. September 18, 2001 is the date Congress passed the "Authorization for Use of Military Force", which made no mention of habeas corpus or "Enemy Combatants". The section should be revised or omitted. TomOinDC 08:13, 30 March 2006 (UTC)

Also, Quirin, Eisentrager, and Padilla should be mentioned. Amcfreely 04:23, 10 April 2006 (UTC)

Move here..... The government *hasn't* been able to suspect the use of habeas corpus, which is how these cases are getting to the courts.

In times of war governments may seek to limit the use of habeas corpus; currently, the United States and its War on Terrorism is suspending habeas corpus while detaining certain non-citizens suspected of connections to terrorists or terrorism and holding them as enemy combatants.

Roadrunner 22:08, 23 September 2006 (UTC)

I propose that this section be made its own article - it is sufficiently long, and this article is already too long.--38.112.113.146 20:55, 11 May 2007 (UTC)

This can't be right. Under Habeas_corpus#War_on_Terror it says: "the power to detain a non-Caucasian suspected of connection to terrorists or terrorism as an unlawful combatant." —Preceding unsigned comment added by 69.204.195.137 (talk) 17:32, 15 April 2008 (UTC)

Prohibito → Prohibition (writ)?

Right now, prohibito is listed as a prerogative writ, but that article doesn't exist. The article Prohibition (writ) does, however.

Are these the same? Is there even such a thing as a writ of prohibito? Would somebody who is more knowledgeable on this subject then me either correct the article or setup a redirect?

--Tjohns ✎ 02:53, 5 August 2007 (UTC) The complaint that there is too much jargon in this article should be disregarded. One can not discuss legal matters or medical matters without using the language of the Law or Medicine. However, we need to explain such and that has been done. The Latin Language is the traditional language of law in the West and particularly in England and The United States. Unfortunately the claim that it is a dead language is almost true today as it is almost no longer taught in most school systems and only survives in Parochial schools. Nevertheless we must know Latin as the study of it assists us in Science, Law and the Arts. —Preceding unsigned comment added by 66.191.202.151 (talk) 11:35, 26 June 2008 (UTC)

The phrase "a number of"

While converting inline web links to references, I noticed the following sentence:

To date, there have been a number of confirmed cases in which non-American civilians have been incorrectly classified as enemy combatants.

This sentence had a valid reference: Guantanamo prisoner 'incorrectly' detained. However, the phrase a number of is not fully backed up by the reference, because the article mentions a single prisoner. I considered changing a number of to at least one, but I thought it would be wise to solicit comments from other Wikipedians before making a change like this to a controversial topic. It may well be that there are other cases, but if so, additional references should be added to back up the assertion of a number of (implying more than one or two). Failing that, the existing phrase reads as an exaggeration of the single cited article. CosineKitty (talk) 15:11, 29 June 2008 (UTC)

Similarity to the Magna Carta?

I've noticed that there is a distinct similarity between the Magna Carta and Habeas Corpus. It seems that clauses 36, 38, 39, and 40 provide the structure for the Habeas Corpus, so isn't it just an extension, or repeat of what is said in the Magna Carta, should we put its similarity?MozartEinsteinPhysics! (talk) 02:18, 21 January 2009 (UTC)

Very long article

This is getting very long and the section on the U.S. is disproportionately large and detailed. I suggest that we spin it off to a separate article, e.g. "Habeus corpus in the U.S."

Also, should it be italicized wherever used (habeus corpus)?

My non-lawyerly understanding is that it's a demand to show that there is evidence, e.g. the body of a case, against a prisoner; and if not, to let him go. Monado (talk) 03:15, 16 May 2009 (UTC)

The definition from "Nolo's Plain-English Law Dictionary" is much better

This article is terrible. It is too philosophical, and almost incomprehensible to non-lawyers (even educated ones).

I know we can't just copy this, but could someone write a short, clear explanation like the one they have at this web site? 76.19.65.163 (talk) 05:13, 7 September 2009 (UTC)

http://www.nolopress.com/dictionary/habeas-corpus-term.html;jsessionid=D9075E224A9A264A64C535E76C48DB7D.jvm1

(hay-bee-us kor-pus) 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 or her. If the judge orders a hearing after reading the writ, that becomes the prisoner's opportunity to argue that the confinement is illegal. Habeas corpus is an important protection against illegal confinement, once called "the great writ." For example, it can be used in cases where a person is being held without charges, or when due process obviously has been denied, bail is excessive, parole has been granted, an accused has been improperly surrendered by the bail bondsman, or probation has been summarily terminated without cause. A particularly frequent use of habeas writs is by convicted prisoners arguing 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. Note that 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.

Little change "over the centuries"

The two examples in the first major section comparing two citations of habeas corpus writs take up a lot of space. It is claimed "That the basic form of the writs of habeas corpus, now written in English, has changed little over the centuries can be seen from the following examples..."

But these two examples don't really demonstrate little change "over the centuries." They don't even demonstrate little change even over ONE century, since the first is from the 8th year of Queen Victoria's reign (1844), and the second is dated 1921, a timespan of 77 years. In contrast, habeas corpus has existed for over 700 years. While the examples are fine, do they really justify spending this much space on? At a minimum, if someone could find a recent habeas writ to compare to the Victorian one, at least that would be over 150 years. What would be even better would be a comparison with an old Latin one, since the language does stay roughly the same "over the centuries"... these examples just don't demonstrate that. 65.96.161.79 (talk) 22:23, 3 November 2009 (UTC)

The old Latin formula is at the beginning of the section, but what we need is a cited and dated version. I think the two ones at the end are supposed to be examples of "modern" writs Andrew Yong (talk) 00:46, 10 November 2009 (UTC)

Yes, but what does it mean?

The supplied definition may be a useful refresher to someone versed in law, but to a layman like me, it is as clear as mud. When someone says (as indeed the definition says) "the right of habeas corpus" (for example, "the right of habeas corpus was suspended"), what is that right, condensed to its simplest form? Is it the right to a trial when accused of some wrongdoing? Is it the right to challenge one's imprisonment, in court? From reading your definition, I cannot tell! This must confound the purpose of the definition. I believe your definition should start with a nutshell summary -- a short sentence, comprehensible to a layman -- before going on to elaborate on the complexities.

• habeas corpus is the right to be charged or let go; it means the government cannot just break into your house and grab you and throw you in prison and leave you there, to keep you quiet. It means US President Lincoln could not throw newspaper editors he didn't like into jail with no charges, just to quiet the opposition -- yet he did so anyway, ignoring the supposed habeas corpus right. Similarly, the US nowadays sneaking around and grabbing Americans of Middle Eastern descent and putting them into secret gulags, with no charges and no judicial system, is a violation of the supposed habeas corpus right -- which is why it is mentioned in the article.

First PLEASE sign and DATE comments.

Second, I agree with the person who started this section (and found the above talk sections either not appropriate for my comments or too lengthy already). I grew up with an attorney father who is now a judge, so I have some small grasp of legal language, but I found the initial section of this page TERRIBLY unclear. It seems to be written by those who have studied law and use the language easily, but it is NOT clear to a layperson, and really needs simplifying. I'd even argue for a complete re-write of the opening section. (Other input? I certainly can't be the only user with such a view.)

Additionally, the comment above is actually written clearly, and while it certainly can't replace the opening of the article, is using understandable laymen's language. Wikipedia should be understandable to more than experts. Thanks. --gobears87 (talk) 10:15, 12 December 2009 (UTC)

The simple and correct definition of Habeas corpus

A Writ of Habeas Corpus mandates a hearing by which the arresting body must prove that it's detainee is being held with just cause. Just cause constitutes a signed complaint by the harmed party. The state may not be the harmed party since the state is an entity acting only on behalf of the people and is not a corporeal entity itself and so is not capable of being harmed. Habeas Corpus means "show me the person who has been harmed". If no one has been harmed and there is no one signing and filing a complaint against the detainee, (except in murder cases where the person harmed is dead), then the detainee must be released. This prevents governing bodies from establishing a king/subject relationship with the governed as opposed to a servant/master relationship wherein the governing body is the servant and the individual is the master. When habeas corpus is suspended or otherwise confounded, governing bodies are free to violate the liberty of the individual at will and detain him without just review. This is a most grave condition of state whereby individuals are likely to suffer and be entangled in political agendas they are not party to nor responsible for. Therefore suspension of habeas corpus must only be enacted in the most dire of emergency conditions. If such conditions do not exist and habeas corpus is suspended unlawfully by a governing body, then it has usurped the rights of the individual and the individual is now regarded as the servant and the governing body the master. When this happens, individual liberty ceases to exist and tyranny is in it's place. 96.247.34.212 (talk) 23:31, 30 June 2008 (UTC) —Preceding unsigned comment added by 96.247.34.212 (talk) 23:24, 30 June 2008 (UTC)

This section is very clear. It is better written IMHO than the introduction to the actual article. Is there any chance a regular here (if there are any) could re-write or replace?? The difference between the above and the actual page is that it lacks the overload of technical legal jargon in the actual article. --gobears87 (talk) 10:19, 12 December 2009 (UTC)

Too much USA content

Because England and USA are two most dominant English language using nations, it is expected that they have more content. But in this article, there are too much USA content and make it too USA-centric. I think it should be shorten, remove those details unless it significantly change the nature or usage of Habeas corpus. Whenever there is suspension or exception, they should be mentioned (do not completely removed if they are important) in summarized form. Everything else can be put into Habeas corpus in the United States. Do not write down every legal proceeding. Only include those legal proceeding that can make us understand more about development history of Habeas corpus before at least 10 years (and I expect most historical development happens in England rather than in modern USA, except Ex parte Quirin), because the essence of Habeas corpus has not been changed within this 10 years.

Remove all country-specific content in the introduction (the part before # 1 Derivation and form), because it is introducing the concept of Habeas corpus, not the operational details of Habeas corpus in specific nation. The only exception is England, but keep it very brief, because we only need to mention the concept of Habeas corpus originates from England legal practices.

If there is a trend that suspension or exception is applied to multiple nations, because of war, homeland security, international or UN measure, or whenever reason, name it and make a summary list of those nation that made those suspension or exception. Not everyone is interested in far deep detail in USA, and I believe there are many non-USA reader in Wiki. --Kittyhawk2 (talk) 16:01, 30 August 2008 (UTC)

I think it is inappropriate that the introductory passage is so USA-oriented. Regardless of fascinating current issues, the introduction should better reflect the general principle and the historical origin which, to my limited knowledge, is the Magna Carta. —Preceding unsigned comment added by 58.109.88.162 (talk) 17:37, 15 November 2008 (UTC)

I agree that the introduction should include a more general description of the form, purpose, and function of habeas; however, we are not talking about a philosophical concept here. This is a legal doctrine, so when one refers to "habeas," they are referring to what judges have said at certain times in certain places. (But see Natural law/Positive law debates, e.g. Dworkin vs. Hart). As such, there are really three concepts here I think: 1. The philosophy of habeas (based in liberalism); 2. The history of habeas (From England to other common law states); 3. The law of habeas. The third, unlike the first two, should focus on current legal doctrine--what is the habeas doctrine in X? Because habeas isn't just some statute (although there are statutes and U.S. constitution contains), but a common law doctrine by the name of habeas corpus, it is not a solution to have provisions specific pages.

This page seems to combine all three. As such, I would argue that, although the writ originated in England, it has seen its most expansive application and most thorough in the United States, and, as such, the most accurate and developed expression of the philosophy and history are to be found there. Because of this, I would suggest that the United States should be focussed on in the general topic areas to the extent that those areas focus on the philosophy or history of habeas. Obviously, to the extent an area focuses on doctrine of stateX, where X≠"United States", then U.S. law is all but irrelevant unless, for some reason, it has been incorporated into the doctrine in X.

In any case, my primary issue with this article is that it doesn't contain a section focussed on the current English doctrine, only focussing on the history. Arguably, English habeas, with the possible exception of the U.S. as stated above, the most expansive and through version of habeas, and certainly is the oldest to go by the name. Also, there isn't a separate page for England, as there is for the U.S.. These topics deserve attention. —Preceding unsigned comment added by 97.81.80.147 (talk) 04:33, 15 December 2009 (UTC)

Case of Richard I. Fine

Here is an example of the principle of Habeus Corpus NOT working in this country of USA. Attorney Richard Fine now held one full year in solitary coercive confinement for challenging a judge in California civil court. Might belong in this article. http://www.fulldisclosure.net/Programs/556.php JohnClarknew (talk) 17:45, 4 March 2010 (UTC)

West Bank

I don't think this should have been deleted.

This definitely doesn't belong. Its continually being added by members of WikiProject Palestine. I have no particular political affiliation but am a lawyer. I think political bias really hurts this portion of the article. It could however be made into another Wiki and has some good points.

The law in the West Bank section is not habeas corpus. Not all judicial review or arrest and detainment is habeas corpus. There are a number of other bases for this type of review.

The piece could be made to fit the equivalent remedies section but even that would be a stretch. If one intends on re-inserting it into the wiki they should somehow show the logical connection.

Moreover, there are a host of other countries where prisoner's access to judicial review vis-a-vis marshal law is an issue. They too would have to be included. This would likely be too broad in scope for the wiki.

This should really be about Habeas Corpus and its various applications. unsigned = Voiceofreasonandtruth

West Bank

In the areas of the West Bank occupied by Israel and administered by the Israeli army since 1967, Military Order 378 is the basis of Palestinian prisoners' access to judicial review. It allows for arrest without warrant and subsequent detention for a period not exceeding eighteen days before a court hearing. In April 1982 the office of the Chief of Staff, Rafael Eitan, issued a document which called for a policy of re-arresting detainees shortly after their arrest: "When it is necessary, use legal measures which enable imprisonment for interrogation for a period stated in the law, and release them for one or two days and then re-imprison them." Israeli soldiers used the Hebrew word tertur to describe the new policy in which this practice was recommended.

- - The 1987 Landau Commission into Israel's security services "Methods of Investigation" recommended that the length of time a prisoner could be held without judicial supervision should be reduced to eight days. In its 1991 report on the Military Justice System Amnesty International noted "that even the proposed eight-day maximum period of detention without judicial supervision falls far short of the safeguards provided by Israeli law in this respect. It is also inconsistent with international standards of judicial access."

- - A 1991 report by Amnesty International quotes Article 78 (a) to (e) of Military Order No. 378 as authorizing soldiers "to arrest and detain any person suspected of committing a security offence for 96 hours without a warrant. After this, two seven-day extensions may be granted by police officers before the detainee need be brought before a Judge for the first time."

- The report notes that in Israel and East Jerusalem the law is that a person "shall be brought before a Judge as soon as possible, but not later than 48 hours after his arrest." In special situations an extension of a maximum of a further 48 hours is allowed. Padres Hana (talk) 11:07, 27 June 2011 (UTC)

References

the meaning of habeas corpus

'Habeas' is the sort of subjunctive that survives in some antiquated forms of English, e.g. the one used in the USA. 'I require that you be here on time'. The verb 'habere' is as full of meaning as the Engish 'have', and in this context clearly means something like '... that you produce the body'. As far as I know (my knowledge being limited to the words of the Latin text), habeas corpus was never designed to ensure that anyone got a fair trial, merely that a person got a trial. — Preceding unsigned comment added by Pamour (talk • contribs) 20:26, 27 July 2011 (UTC)

I have to say that after reading through this Talk page and the points raised throughout the discussion, concerning the meaning of the term "Habeas Corpus", I still find the first sentence unsatisfactory, because "you may have the body" implies that there is uncertainty as to whether or not a person is being held. I accept that "habeas" is the volitive subjunctive form of the verb, though I also note that there are sub-divisions of the volitive in the Latin Grammars to which I have access: and it would be as well if this particular use of the volitive subjunctive were defined more precisely.

The construction of the Writ in Latin is such that "Praecipimus" ("We instruct", as opposed to "Mandamus", "We order or command") has to be seen as the most emphatic instruction from the Sovereign, to his or her appointed Sheriff of a place, and their agents; who are, as it is said ("ut dicitur"), known to be physically detaining a named person ("corpus A. B.) (regardless of any other name by which that person may be known); and that the Sheriff have that person, in person, brought into the presence of the Sovereign ("habeas coram nobis") at the place named in the Writ.

The page for the Writ of "error 'coram nobis'" is of interest, too.

I should mention in passing, that though Latin was the language employed by the lawyers in England for Writs such as this, and after 1362, English was allowed to be used in verbal proceedings (or pleadings): but Law French (as developed from Norman French) continued to be used for almost all written records of English law until as late as 1733.

It is not an easy task to elucidate the precise meaning of such an ancient Writ. But I hope it can be looked at again, as Habeas Corpus is such a vital safeguard for the individual, even now. If anyone would like to respond here, perhaps we can work towards this. As I have said, I find the present wording of some of this article obscure.

- g88keeper (talk) 18:38, 1 December 2011 (UTC)

Erroroneous definition

Someone has inserted into the introduction that Habeas Corpus is the right to a trial by jury. It was my understanding (supported by the text of the article), that habeas corpus was protection agaisnt illegal detention ("let us have the body" makes more sense in the context of getting out of jail tha nit does getting a jury). Have I been wrong all this time? —Preceding unsigned comment added by 165.91.65.177 (talk) 23:03, 27 April 2008 (UTC)

I can answer my own question above. Habeas Corpus is NOT the right to trial by jury. Habeas Corpus is addressed in Article 1, Section 9 of the US Constitution, and trial by jury is addressed in the 6th Amerndement. Obviously they are two different things. I will edit the article accordingly. 165.91.65.177 (talk) 00:18, 28 April 2008 (UTC)RKH

Hi, I'm a Latin scholar, and I'd like to clarify the Latin. "Habeas corpus" literally means "may you have the/your body." It's what is known as a hortatory subjunctive. I'm not a lawyer, but I've always understood it to mean that each person is to have control over their own body unless they are under arrest and being charged with a crime. — Preceding unsigned comment added by 174.97.165.71 (talk) 02:37, 23 April 2012 (UTC)

Poorly written

This has got to be the wordiest, most confusing explanation of habeas corpus possible. I've practiced in federal and state criminal courts for a few years and no one uses any of those old "alternative" habeas writs any more. In modern U.S. practice, the writ is used to challenge to the legality of government confining someone, whether it be in jail, a mental institution, or a hole in the ground. The other, older versions of the writ aren't used in U.S. practice. The discussion Zz414 01:30, 16 November 2006 (UTC)should be divided into modern U.S., British, Canadian, Australian, Irish, and anyone else who uses the writ, and then a brief mention of the history. Most people coming here will want to know what it is now, today, in a particular place, and then maybe will be interested in learning about how it used to function. I'll take a crack at improving it over the next several days, but I don't know if I have the time.

I agree. I read through this entire article and not once felt I was being given a clear explanation of what Habeas Corpus actually is (that a layman could understand). How about a simple example (real or not) of a case where Habeas Corpus is used? 80.195.186.192 12:42, 8 September 2006 (UTC)

I think that the article isn't very clear about what is an habeas corpus. The first paragraph should give a clear definition, even if it's not a 100% correct one (it can be corrected in the remain part of the article). I would suggest something like this:

Habeas corpus is the name of a legal action or writ by means of which detainees can seek relief from unlawful imprisonment. The detainee may petition a court for the determination of whether he/she is legally detained or should be relase. The court may order that the detainee be be brought before the court to do so.

Jayme 20:42, 27 January 2007 (UTC)

I agree. The translation in the OPENING SENTENCE ("(Latin meaning "you are to hold the body" i.e. "you should arrest") IS DEAD WRONG AND HAS TO GO! It is completely contradicted by ALL of the boxed examples about one screen farther down the article. From those it is clear that "Habeas" does NOT mean "you shall arrest" but "you shall PRODUCE [the person of the said detainee] BEFORE THIS COURT." I grant that it's an archaic sense of "have," not meaning to possess but to bring to a given venue -- but from ANY of the historic examples in the boxes it's OBVIOUS that's what it means. As someone farther down this thread has succinctly put it, Habeas Corpus is the right to be charged or let go. Principal author, use your head!173.76.25.179 (talk) 02:46, 18 November 2010 (UTC)

There is a part of the article that states, "On 29 September 2006, the U.S. House and Senate approved the Military Commissions Act of 2006, a bill which would suspend habeas corpus for any alien... " etc. This information is wrong. The Act does not apply to just "aliens". What the Act does is define the word "alien" in context to the law. If one reads the Act, they will see it applies to both "lawful" and "unlawful" combatants - which include anyone has "engaged in hostilities against the United States or it's co-belligerents...". The Act is written vaguely enough to apply to anyone, citizen or alien. 68.227.179.152 00:57, 14 October 2006 (UTC)

That is incorrect. The act is clear about this. In Sec. 948a, Definitions, it is specified: "ALIEN- The term `alien' means a person who is not a citizen of the United States." And in Sec. 7, the right of habeas corpus is removed only for enemy combatants who are also aliens: "No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination." JamieMcCarthy 13:42, 24 October 2006 (UTC)

The article states that, "In Ex Parte Milligan 71 U.S. 2 (1866), the Supreme Court of the United States decided that the suspension of the writ was unconstitutional." That is wrong, but I'm a total novice here so I don't know how to correct it. Ex Parte Milligan was NOT a Supreme Court case. It was heard by the Chief Justice, Taney, sitting as a Circuit Justice for the DC District. I hope one of you will correct this error, as it gets repeated far too often.

I want to thank you for giving a clearer explanation on this. My history teacher has given us a take home test with 100 questions, and I looked up writ of habeas corpus on the internet because it is not in our textbook. I din't understand half of what the article was talking about, and thought that maybe someone in here could explain it more clearly. You saved my grade, thank you very much!

Horrible grammar - the last sentence of the Australian section is almost unreadable. The nearest interpretation is that Australian government attacks on habeas corpus are continuing in 2008, a matter negated by fact and political persuasion (Labor is center-left). Maybe I ought to have rewritten it myself rather than "winge", but the text is written in too horrible a manner for my editing tastes (as is THIS sentence). Ugh. Just Ugh.

Weasel words

In parts of the country, or for certain classes of resident, habeas corpus has been suspended more recently, however. The British Government's 2004-2005 passage of the Prevention of Terrorism Bill through the House of Commons brought a great deal of criticism, much of which suggesting that the bill threatened Habeas corpus.

As well as having weasel words construction, this looks like POV to me. There's no supporting evidence and no attempt to cite any references. I've removed it.

Pearcej 06:09, 27 July 2005 (UTC)

These are not weasel words. Nor are them a derogation from POV. Instead they provide useful and interesting clarification presented in neutral language. I'll put them back. Flugkupeskce777777777.

The statement "In parts of the country, or for certain classes of resident" is so vague as to be meaningless. What does this mean? What is a "class of resident"? Which parts of the country? It sounds very much like POV to me. Please clarify.

The statement ending "...brought a great deal of criticism, much of which suggesting that the bill threatened Habeas corpus" are Weasel Words. Again, who exactly criticised it? A better example (if it were true), would be: "...brought a great deal of criticism from Liberty, who suggested that the bill would threaten Habeas corpus."

Pearcej 06:22, 28 July 2005 (UTC)

(Erosion of Habeas Corpus in the US, 1980-2002?)

Such an erosion of the writ might be best addressed as part of the overall effort to streamline the federal appeals process.

The section on suspension of the writ in Chile? did/does Chile recognize such a writ - I believe they are a civil law jurisdiction.

Civil law jurisdictions do not recognize habeas corpus per se — if only because modern civil law jurisdictions normally do not use latin expressions in legal contexts. They tend to have, however, judicial procedures that are close or equivalent. David.Monniaux 12:50, 17 Mar 2005 (UTC)

Portugal and Spain are cited as examples of civil law jurisdictions that indeed recognize the right of habeas corpus, called that. Quebec is another one, recognizing habeas corpus by name in the Quebec Charter of Human Rights and Freedoms. -Montréalais 02:42, 12 March 2007 (UTC)

This is false. The writ of Habeas corpus was not suspended after 9-11.

Following the crime against humanity which occurred on 11 September 2001 in New York, habeas corpus was suspended in the USA. More than a thousand people were arrested due primarily on their national origin (see racism), and were kept imprisoned in secret without any form of legal process. Under pressure from lawyers, many of these "disappeared" people were released, but others were deported without being charged or brought before a court of law. Some of the "disappeared" people who were released alleged that they had been tortured.

Further on the "suspension" of the writ after 9/11 . . . The Constitution's guarantees (such as no suspension of the writ) only apply to citizens. Whether a foreign national enjoys a particular constitutional right depends on the right and the situation. As a general matter, an illegal alien wouldn't have a constitutional right to petition for a writ of habeas corpus. A court might hear their petition, but not because the Constitution demands it.

As I count it, there were two individuals who are United States citizens who the Bush Administration attempted to label as "enemy combatants," arguing, in effect, that if the Prez calls someone an "enemy combatant" that means he can suspend their constitutional rights. The administration eventually decided to hand the two off to federal prosecutors and put them through normal criminal proceedings rather than test the President's "enemy combatant" powers. For those two, but only those two, I think it's fair to say that the writ was suspended for a while.

The US has done lots of nasty things - deposing Salvador Allende among them - but why should this be in an article about habeas corpus? bob

I recently reverted vandalism to this section of the talkpage performed on March 6, 2006. I hope I didn't miss anything. 71.121.1.6 12:08, 20 July 2006 (UTC)

Suspension of Habeas Corpus following the 11 September (1973) incident

Following the US supported coup d'etat against the democratically elected president of Chile, Salvador Allende, on 11 September 1973, habeas corpus was effectively suspended in Chile. Tens of thousands of people suspected to be opposed to the government were "disappeared". Many eventually were found to have been killed.

Maybe the part about the US supporting the coup is out of place, but the rest is relevant to the article. It is interesting that during South American dictatorships such as the one Chile had, Habeas Corpus often gets effectively suspended. Why have info only on England and the US? 200.89.130.29 03:24, 11 October 2005 (UTC)

Habeas Corpus is a British-American common law writ. Most Latin American countries have their basis in civil, codified law. Chile is irrelevent. —Preceding unsigned comment added by 71.150.85.41 (talk) 23:19, 12 February 2008 (UTC)

Agreed. Habeas is a specific common law writ. It is not slang to refer to any imprisonment that might be unjust. Instead it is a specific procedure to challenge detention.LH (talk) 07:03, 25 June 2008 (UTC)

Introduction

The definition of habeas corpus seems very unclear to me. Sorry, but I simply cannot understand it. Could someone rewrite the first chapter, and/or perhaps give an example? Does this mean the person must appear at a court, be told the reason for imprisonment? "It's purpose is to release someone who has been arrested unlawfully" - how is that? How does bringing the prisoner to the court release him if he was arrested unlawfully? How does it guarantee against torture? -- Lussmu 19:20, 2 Jul 2004 (UTC)

I clarified the introduction by showing the writ in two different context. The original context makes the explanation confusing. The writ (in a common law context) is used to remove a person from a civil court into a common law court. This is vastly different from the explanation in the introduction. The personal liberty is protected in choice of law actions by the writ (actually by the return on the writ issued by the court of common pleas).(RAF)

The civil law writ allows for release if the person is being held without due process. This allows your attorney to get you out of jail until you have had a trial. Unfortunately it only works when you either have a lawyer or the ability to file this claim. A person without this ouside contact (an attorney or someone who can file the writ) isn't protected very well except by the disire of government to do what is right (this is a very small desire and almost can't be found).

I have to agree that after reading most of this article, I still have no idea what habeas corpus is. This is the most vague article I've read yet on Wikipedia. A good introductory paragraph would go a long way towards clarifying this article. AceTracer 19:20, 2 September 2005 (UTC)

I also have no idea about what habeas corpus does. Perhaps an example, historical by preference but made up if necessary, would clarify things? For example, suppose the police come around, grab me and throw me in prison. What does habeas corpus do for me? (And do I have it, in Canada?) --Andrew 19:07, 22 October 2005 (UTC)

prisona

The part in prisona nostra in the Medieval Latin version of the writ sounds amusingly like Dog Latin. I suspect that prisona is directly from (Law) French (i. e., Anglo-Norman) rather than English, however, because it has a feminine gender ending that la prison suggests but the prison does not. In any case, prisona is a barbarism almost in the original sense – a Germanic loanword in Medieval Latin, and the like –, except that French descends from Latin and thus is not truly a "barbarian" language from the Latin point of view. --Florian Blaschke (talk) 15:19, 1 February 2013 (UTC)

Definition of National Emergencies

'National emergencies' is a term that is not well understood, but commonly used. There is no clear definition as to when a series of events constitutes a national emergency. Furthermore, it is not neutral to have all suspensions of habeas corpus thrown into the same basket. The suspensions have always been for very different reasons and for wildly varying governments, and saying most have done it, is like saying that 'most drivers have at one point or another ignored traffic rules'. It is more neutral to say that sometimes a suspension has occurred, by some governments. — Preceding unsigned comment added by Plasticzoo (talk • contribs) 17:22, 18 May 2013 (UTC)

removing POV tag with no active discussion per Template:POV

I've removed an old neutrality tag from this page that appears to have no active discussion per the instructions at Template:POV:

This template is not meant to be a permanent resident on any article. Remove this template whenever:

1. There is consensus on the talkpage or the NPOV Noticeboard that the issue has been resolved
2. It is not clear what the neutrality issue is, and no satisfactory explanation has been given
3. In the absence of any discussion, or if the discussion has become dormant.

Since there's no evidence of ongoing discussion, I'm removing the tag for now. If discussion is continuing and I've failed to see it, however, please feel free to restore the template and continue to address the issues. Thanks to everybody working on this one! -- Khazar2 (talk) 12:27, 18 July 2013 (UTC)

1789 United States Declaration of the Rights of Man and Citizen

What is this? The reference is a broken link, and Internet searches turn up next to nothing. I don't think this is a document that forms a foundation of US law. Blchrist (talk) 13:07, 10 October 2014 (UTC)

The suspension of Habeas Corpus has occurred in United States history; Former Presidents Abraham Lincoln, Ulysses Grant, and George W. Bush have all signed the suspension of Habeas Corpus.

The suspension of Habeas Corpus has occurred in United States history; Former Presidents Abraham Lincoln, Ulysses Grant, and George W. Bush have all signed the suspension of Habeas Corpus.

that is a bold statement and is not cited — Preceding unsigned comment added by 68.50.119.13 (talk) 21:49, 23 June 2012 (UTC)

Barack Obama added to the list of presidents who suspended Habeas Corpus due to his signature of the NDAA bill. — Preceding unsigned comment added by 136.160.139.250 (talk) 18:59, 31 October 2012 (UTC)

I'm removing the addition of Bush and Obama; neither are cited. I'm also removing "Despite the suspension of habeas corpus being under the legislative powers in article 1 of the U.S. Constitution, it has taken place in the past in the United States." This language is confused but appears to be an attempt to state an unsourced opinion about the legality of historical suspensions. --Allen (talk) 01:59, 22 July 2013 (UTC)

"National Defense Authorization Act for Fiscal Year 2012, Pub.L. 112–81. This NDAA contains several controversial sections (see article), the chief being §§ 1021-1022, which affirm provisions authorizing the indefinite military detention of civilians, including U.S. citizens, without habeas corpus or due process, contained in the Authorization for Use of Military Force (AUMF), Pub.L. 107–40.[6]" — Preceding unsigned comment added by 70.78.58.41 (talk) 03:51, 12 August 2015 (UTC)

On Latin

It's been a long time since I've studied Latin, but shouldn't it be habeas corporem, being accusative? Wouldn't "habeas corpus" imply that tu = corpus? (In other words, you are the body?)

Be it grammatically correct or not, Habeas Corpus is a proper name so it doesn't really matter. --PullUpYourSocks 20:53, 4 August 2005 (UTC)

Yes, I realize that. I was just wondering about whether or not it IS gramatically correct. I've noticed that we as a culture seem to "abuse" Latin a little bit when assimilating it into our own language. I've done some thinking (and tried to refresh my rusty Latin) and come to the conclusion that "habeas corpus" IS gramatically correct if "corpus" is neuter. Most neuters tend to end in "-um" but not all of them do, for example "opus" is neuter. I saw "corpus" and assumed it to be second declension non-neuter, as most (but not all) words ending in -us tend to be. But, I think now, it is neuter, so "habeas corpus" is correct. (Which is kind of odd to me. What if you wanted to say the body had something? corpus habet (the body has) vs ille corpus habet (that one has a body) It's impossible to distinguish. I guess that's one reason why Romance langauges no longer have declensions.

English is indeed known to warp the original meaning of borrowed Latin phrases, but it almost never abuses the form. You are correct that "corpus" is neuter, but the fact that you thought it should be "habeas corporem" rather than "habeas corpum" shows that you didn't think it was second-declension; you just thought it was a non-neuter third-declension. An understandable mistake (I remember how embarrassed I felt the time I translated a Latin passage and used "operem" instead of "opus"), but almost all Latin words that decline "us, oris" or "us, eris" are neuter: facinus, foedus, holus, nemus, onus, opus, pectus, tempus, viscus, vulnus... Anyway, glad you figured it out for yourself, sorry to waste your time with this largely redundant confirmation of your findings. :) -Silence 07:03, 31 August 2005 (UTC)

habeas corpus = Lat. "you have the body" Sounds accusative to me. dananator.

Corpus is not a 2nd declension Latin masculine noun, but rather a (commmon) 3rd declension Latin neuter noun, so its nominitive and accusative are the same form (as is always true for neuter Latin nouns). (Note: mistaking corpus for 2nd declension masculine is much like mistaking virus for 2nd declension masculine; an unendingly recurring mistake amongst those who do not know Latin, and eventually a very boring mistake.)

Another thing: Isn't a more precise translation: You may have (your) body instead of should? Should sounds like a duty, but this here is a right. Right?

habeas corpus = Lat. "you have the body"

habeas means "we have" IIRC. Not "you have". However I will not correct the article myself, because I speak Italian, not Latin. But it'd be nice for a Latin-fluent editor to speak up.

No that's incorrect - habemus is Latin for "we have", habeas is a present subjunctive, meaning, approximately, "you may have the body" --ukexpat 14:12, 16 November 2007 (UTC)

The article seems to imply that the original was "mandamus ut habeas corpus" or something to that effect. Is this accurate? I took a glance at the text of the magna carta, and didn't see any such formula. Was this sort of phrasing used in England common law courts or something? --219.208.179.163 (talk) 10:42, 2 December 2008 (UTC)

• "Mandamus ut habeas corpus" means "We command you to have the body". "Habeas corpus" can be taken as jussive subjunctive with an imperative "feeling," meaning "Let you have the body" or, for brevity, "You have the body." The Latin-English translation of "You shall have the body" is incorrect because that would be "Habebis corpus." --Sunshine3491 (talk) 02:11, 16 December 2008 (UTC)

"Liberty of person is a fundamental right of an individual and same is guaranteed under the constitution as well.The main object of proceeding of habeas corpus is to ensure the liberty of a citizen and avoid ollegal or improper detention". —Preceding unsigned comment added by 86.18.179.71 (talk) 01:24, 10 February 2011 (UTC)

1. In the first sentence of the article the translation of the Latin phrase should be modified to read "have the body," or perhaps "you have the body." I don't see where the "may you" comes from. The current translation isn't supported by anything yet written in this section's Talk. Sunshine3491's interpretation is correct: habeas has the force of an imperative or command, not a request.

In the boxed "Examples," the basic sentence structures are: A. We command you that you have the body . . . in our Court . . . . B. We command you that the body . . . you safely have before . . . [Judge Manton]. . . .

2. Furthermore, I suggest the boxed translation of the Latin example should be edited to read (keeping the bolded text),

"We command you that you have the body AB in Our prison under your custody detained, as it is said, together with the day and cause of his taking and detention, by whatever name the said A.B. may be known therein, before us ... to undergo and to receive that which our Court shall then and there consider and order in that behalf. Hereof in no way fail, at your peril. And bring [or "have"] this writ with you."

Latin often puts the object (corpus = body) before the verb (habeas = have) it is the object of. But this kind of phrasing sounds really awkward in English. And there is no word for "court" in the phrase "coram nobis." It simply says "before us." (It means "at our court" but the words don't literally say that.)Notker99 (talk) 16:31, 29 May 2013 (UTC) Notker99

I am not going to attempt any change in the text, because I know how prissy these self-nominated "page editors" may be, but the translation "you may have the body" is just WRONG. "habeas" is conjunctive, which in Latin-based languages carries several meanings; one of those meanings is strong, very strong suggestion, practically an order (even though not a formal, hierarchical one - for those we use the imperative). The translation "you may have the body" sounds like whoever detaines the prisoner receives a right, whereas he is receiving an injunction. Probably "you must/shall have the body" would be too harsh, and wrong as well. The right translation probably lies in using some ancient English idiom, which I don't know well enough...

The accusative, singular, of the neuter noun Corpus is Corpus. What's the problem? Ex nihil ^(talk) 03:36, 21 April 2017 (UTC)

Happy birthday, Habeas!

According to the ACLU today is Habeas Corpus's 792nd birthday! - 75.40.65.196 20:53, 15 June 2007 (UTC)

And today would be half a year or so after it’s 805th birthday iamthinking2202 (please ping on reply if you would be so kind) 03:48, 21 December 2020 (UTC)

Dubious claim - United States

The claim made in the United States section (shown below) makes claims I cannot verify and in modern times appears to be unrealistic.

When the original thirteen American colonies declared independence, and became a republic based on popular sovereignty, any person, in the name of the people, acquired authority to initiate such writs.

The main article points out, at length, the difference between the implementations of writs in the US and England. Such differences however only allow for a person to petition a court for a writ of habeas corpus if they are a federal prisoner and meet the criteria set out here. It would seem more appropriate the text reflect the realities presented in the main article which provides a much stricter definition for who may petition for a writ. Generically Named (talk) 14:35, 11 October 2024 (UTC)