Should Habeas Corpus be eliminated?

No

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by Robert W. McDonald

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The right of the individual to petition for a writ of habeas corpus stands at the heart of American democracy and should be strengthened rather than restricted or abolished.

In its simplest definition, a writ of habeas corpus is an order issued by a court in which an individual (the "petitioner") asks that the court determine if that individual is being unlawfully detained or imprisoned. If the arresting or detaining entity (the "respondent") is unable to prove that it has the legal authority to hold the petitioner, then the petitioner must be set free.

The right to petition for a writ of habeas corpus is specifically protected by Article I, Section 9 of the Constitution which states 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." It is the latter part of Section 9 that has generated the most controversy. The question of who has the authority to suspend habeas corpus " when in cases of rebellion or invasion" was first tested shortly after the shelling of Fort Sumter in 1861, when Abraham Lincoln ordered martial law in parts of the state of Maryland.

Lieutenant John Merryman was an officer in the Maryland state militia. Merryman, in part due to his sympathies for the Confederacy, had participated in the destruction of a bridge being used by Union forces that were reinforcing Washington, DC. He was arrested by the military, acting under the authority of martial law, and held in a prison near Baltimore.

Merryman filed for a writ of habeas corpus with the Federal District Court in Maryland. The Chief Justice of the Supreme Court, Roger Taney, ruled in favor of Merryman and ordered his release on the grounds that only Congress had the power to suspend habeas corpus even if President Lincoln had legally declared martial law. Lincoln, quoting Andrew Jackson, said "He [Taney] has made his ruling, now let him enforce it" and simply ignored Taney's order (Ex parte Merryman,
17 F. Cas. 144, 1861) that Merryman be released.

A later ruling by the Supreme Court established that indeed only Congress could suspend habeas corpus
and limited the authority of military courts martial to try civilians only to cases in which local civilian courts were not functioning (Ex parte Milligan, 71 U.S. 2, 1866).

Legislation passed following the terrorist attack of September 11, 2001 sought to limit, or even deny, the right to petition a court for a writ of habeas corpus. Specifically, the Military Commissions Act of 2006 (10 U.S.C. 948a) sought to limit the federal courts' authority to hear petitions for habeas corpus brought by "enemy non-combatants" detained in Cuba and at other locations.

The Supreme Court eventually ruled (542 U.S. 507, 2004 and 548 U.S. 557, 2006) that the privilege to petition for a writ of habeas corpus was not limited to US citizens and extended to all areas that are (or were) under the jurisdiction of the United States. Furthermore, the Court ruled that Congress could not delegate its authority to suspend habeas corpus to either the Executive or Judicial branches of government.

To paraphrase Eugene Debs' immortal question of almost a century ago "How can we justify fighting an overseas war, whose stated purpose is to defend democracy, when democracy is at the same time denied to those at home?"

It would be nothing less than hypocrisy if the government of the United States of America were to proclaim itself the protector of the rights of the individual should it consider abolishing the doctrine of habeas corpus. Attempts at "modifying" or "fine tuning" the Constitution, regardless of the best intentions or dedication to some "greater" or "more noble" purpose, should be opposed by everyone.

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