Also known as "The Great Writ," a writ of habeas corpus ad subjiciendum is a summons with the force of a court order addressed to the custodian (such as a prison official) demanding that a prisoner be brought before the court, together with proof of authority, allowing the court to determine whether that custodian has lawful authority to hold that person, or, if not, the person should be released from custody. The prisoner, or another person on their behalf (for example, where the prisoner is being held incommunicado), may petition the court or an individual judge for a writ of habeas corpus.
The right to petition for a writ of habeas corpus has long been celebrated as the most efficient safeguard of the liberty of the subject. Albert Venn Dicey wrote that the Habeas Corpus Acts "declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty." In most countries, however, the procedure of habeas corpus can be suspended in time of national emergency. In most civil law jurisdictions, comparable provisions exist, but they may not be called "habeas corpus. The reach of habeas corpus is currently being tested in the United States. Oral arguments on a consolidated Guantanamo Bay detention camp detainee habeas corpus petition, Al Odah v. United States were heard by the Supreme Court of the United States on December 5, 2007. US courts' jurisdiction was altered by Congress in HR 1955, The Violent Radicalization and Homegrown Terrorism Prevention Act of 2006. On June 12, 2008, the Supreme Court ruling in Boumediene v. Bush recognized habeas corpus rights for the Guantanamo prisoners. On October 7, 2008, the first Guantanamo prisoners were ordered released by a court considering a habeus corpus petition.
The writ of habeas corpus is one of what are called the "extraordinary," "common law," or "prerogative writs," which were historically issued by the courts in the name of the monarch to control inferior courts and public authorities within the kingdom. The most common of the other such prerogative writs are quo warranto, prohibito, mandamus, procedendo, and certiorari. When the original 13 American Colonies declared independence and became a constitutional republic in which the people are the sovereign, any person, in the name of the people, acquired authority to initiate such writs.
The due process for such petitions is not simply civil or criminal, because they incorporate the presumption of nonauthority. The official who is the respondent has the burden to prove his authority to do or not do something. Failing this, the court must decide for the petitioner, who may be any person, not just an interested party. This differs from a motion in a civil process in which the movant must have standing, and bears the burden of proof.
''Praecipimus tibi quod corpus A.B. in prisona nostra sub custodia tua detentum, ut dicitur, una cum die et causa captionis et detentionis suae, quocumque nomine praedictus A.B. censeatur in eadem, habeas coram nobis ... ad subjiciendum et recipiendum ea quae curia nostra de eo adtunc et ibidem ordinare contigerit in hac parte. Et hoc nullatenus omittatis periculo incumbente. Et habeas ibi hoc breve.'
We command you, that the body of A.B. in Our prison under your custody detained, as it is said, together with the day and cause of his taking and detention, by whatsoever name the said A.B. may be known therein, you have at our Court ... 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 have you then there this writ.
The word habeas in the writ is not in the indicative mood ("You have ..."), but in the subjunctive (specifically the volitive subjunctive): "We command that you have ...". The full name of the writ is often used to distinguish it from similar ancient writs:
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:
VICTORIA, by the Grace of God, of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith, to J.K., Keeper of our Gaol of Jersey, in the Island of Jersey, and to J.C. Viscount of said Island, Greeting.
We command you that you have the body of C.C.W. detained in our prison under your custody, as it is said, together with the day and cause of his being taken and detained, by whatsoever name he may be called or known, in our Court before us, at Westminster, on the 18th day of January next, to undergo and receive all and singular such matters and things which our said Court shall then and there consider of him in this behalf; and have there then this Writ.
Witness Thomas, Lord DENMAN, at Westminster, the 23rd day of December in the 8th year of Our reign.
The United States of America, Second Judicial Circuit, Southern District of New York, ss.:
We command you that the body of Charles L. Craig, in your custody detained, as it is said, together with the day and cause of his caption and detention, you safely have before Honorable Martin T. Manton, United States Circuit Judge for the Second Judicial Circuit, within the circuit and district aforesaid, to do and receive all and singular those things which the said judge shall then and there consider of him in this behalf; and have you then and there this writ.
Witness the Honorable Martin T. Manton, United States Circuit Judge for the Second Judicial Circuit, this 24th day of February, 1921, and in the 145th year of the Independence of the United States of America.
Blackstone cites the first recorded usage of habeas corpus ad subjiciendum in 1305, during the reign of King Edward I. However, other writs were issued with the same effect as early as the reign of Henry II in the 12th century. Blackstone explained the basis of the writ, saying:
The King is at all times entitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted.
The procedure for the issuing of writs of habeas corpus was first codified by the Habeas Corpus Act 1679, following judicial rulings which had restricted the effectiveness of the writ. A previous act had been passed in 1640 to overturn a ruling that the command of the King was a sufficient answer to a petition of habeas corpus.
Then, as now, the writ of habeas corpus was issued by a superior court in the name of the Sovereign, and commanded the addressee (a lower court, sheriff, or private subject) to produce the prisoner before the Royal courts of law. A habeas corpus petition could be made by the prisoner himself or by a third party on his behalf and, as a result of the Habeas Corpus Acts, could be made regardless of whether the court was in session, by presenting the petition to a judge.
Since the 18th century the writ has also been used in cases of unlawful detention by private individuals, most famously in Somersett's Case (1771), where the black slave Somersett was ordered to be freed, the famous words being quoted (or misquoted, see Somersett's Case):
The air of England has long been too pure for a slave, and every man is free who breathes it.
The privilege of habeas corpus has been suspended or restricted several times during English history, most recently during the 18th and 19th centuries. Although internment without trial has been authorised by statute since that time, for example during the two World Wars and the Troubles in Northern Ireland, the procedure of habeas corpus has in modern times always technically remained available to such internees. However, as habeas corpus is only a procedural device to examine the lawfulness of a prisoner's detention, so long as the detention was in accordance with an Act of Parliament, the petition for habeas corpus would be unsuccessful. Since the passage of the Human Rights Act 1998, the courts have been able to declare an Act of Parliament to be incompatible with the European Convention on Human Rights. However, such a declaration of incompatibility has no immediate legal effect until it is acted upon by the government.
The wording of the writ of habeas corpus implies that the prisoner is brought to the court in order for the legality of the imprisonment to be examined. However, rather than issuing the writ immediately and waiting for the return of the writ by the custodian, modern practice in England is for the original application to be followed by a hearing with both parties present to decide the legality of the detention, without any writ being issued. If the detention is held to be unlawful, the prisoner can usually then be released or bailed by order of the court without having to be produced before it. It is also possible for individuals held by the state to petition for judicial review, and individuals held by non-state entities to apply for an injunction.
The Parliament of Scotland passed law to have similar effect to Habaes Corpus in 1701, the Act for preventing wrongful imprisonment and against undue delays in trials, now known as the "Criminal Procedure Act 1701" (being the short title given by Statute Law Revision (Scotland) Act 1964). This Act is still in force.
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.
The writ of habeas corpus ad subjiciendum is a civil, not criminal, ex parte proceeding in which a court inquires as to the legitimacy of a prisoner's custody. Typically, habeas corpus proceedings are to determine whether the court which imposed sentence on the defendant had jurisdiction and authority to do so, or whether the defendant's sentence has expired. Habeas corpus is also used as a legal avenue to challenge other types of custody such as pretrial detention or detention by the United States Bureau of Immigration and Customs Enforcement pursuant to a deportation proceeding.
In 1950s and 1960s, decisions by the Warren Supreme Court greatly expanded the use and scope of the federal writ, and the most publicized use of the writ of Habeas corpus in modern times has been to allow federal courts to review death penalty proceedings; however, far more non-capital habeas petitions are reviewed by the federal courts. In the last thirty years, decisions by the Burger and Rehnquist Courts have somewhat narrowed the writ, though the number of habeas petitions filed has continued to rise.
The Antiterrorism and Effective Death Penalty Act of 1996 further limited the use of the federal writ by imposing a one-year statute of limitations and dramatically increasing the federal judiciary's deference to decisions previously made in state court proceedings either on direct appeal from the conviction and sentence, or in a state court habeas corpus action and the associated second round of state appeal (both of which, in the usual case, occur before a federal habeas petition is filed).
On March 3, 1863, Congress passed the Habeas Corpus Act of 1863. This bill suspended Habeas Corpus across the nation and was passed to rectify Taney's objections in Ex Parte Merryman, that Congress and not the President has the power to suspend Habeas Corpus.
In 1864, Lambdin P. Milligan and four others were accused of planning to steal Union weapons and invade Union prisoner-of-war camps and were sentenced to hang by a military court. However, their execution was not set until May 1865, so they were able to argue the case after the Civil War. In Ex Parte Milligan, 71 U.S. 2 (1866), the Supreme Court of the United States decided that it was unconstitutional for the President to try to convict citizens before military tribunals when civil courts were functioning. The trial of civilians by military tribunals is allowed only if civilian courts are closed, and if the area is within a theater of active military operations. This was one of the key Supreme Court cases of the American Civil War that dealt with wartime civil liberties and martial law.
This was one of the nine proclamations and orders that Lincoln issued. It was published in the Civil War Harper's Weekly, October 11, 1862.
DOMESTIC INTELLIGENCE. A PROCLAMATION.
By the President of the United States of America:
Whereas, It has become necessary to call into service, not only volunteers, but also portions of the militia of the States by draft, in order to suppress the insurrection existing in the United States, and disloyal persons are not adequately restrained by the ordinary processes of law from hindering this measure, and from giving aid and comfort in various ways to the insurrection. Now, therefore, be it ordered, that during the existing insurrection, and as a necessary measure for suppressing the same, all rebels and insurgents, their aiders and abettors within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice affording aid and comfort to the rebels against the authority of the United States, shall be subject to martial law, and liable to trial and punishment by courts-martial or military commission.
Second: That the writ of habeas corpus is suspended in respect to all persons arrested, or who are now, or hereafter during the rebellion shall be, imprisoned in any fort, camp, arsenal, military prisons, or other place of confinement, by any military authority, or by the sentence of any court-martial or military commission.
In witness whereof, I have hereunto set my hand, and caused the seal of the United States to be affixed. Done at the City of Washington, this Twenty-fourth day of September, in the year of our Lord one thousand eight hundred and sixty-two, and of the Independence of the United States the eighty-seventh.
ABRAHAM LINCOLN. By the President.
WILLIAM H. SEWARD, Secretary of State.
In the early 1870s, President Ulysses S. Grant suspended habeas corpus in nine counties in South Carolina, as part of federal civil rights action against the Ku Klux Klan under the 1870 Force Act and 1871 Ku Klux Klan Act.
In 1942, the Supreme Court ruled in Ex parte Quirin that unlawful combatant saboteurs could be denied habeas corpus and tried by military commission, making a distinction between lawful and unlawful combatants. The writ was suspended in Hawaii during World War II, pursuant to a section of the Hawaiian Organic Act, when martial law was declared in Hawaii in the aftermath of the Japanese attack on Pearl Harbor. The period of martial law in Hawaii ended in October 1944, and the Organic Act's authorization of martial law was ruled not to include the power to close civilian courts in Duncan v. Kahanamoku, 327 U.S. 304 (1946).
The 1950 case Johnson v. Eisentrager denied access to habeas corpus for nonresident aliens captured and imprisoned abroad in a US-administered foreign court.
The AEDPA contained one of the few limitations on habeas corpus. For the first time, its Section 101 set a statute of limitations of one year following conviction for prisoners to seek the writ. It limits the power of federal judges to grant relief unless the state court's adjudication of the claim resulted in a decision that was (1) contrary to, or involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. It generally but not absolutely barred second or successive petitions, with several exceptions. Petitioners who had already filed a federal habeas petition were required to first secure authorization from the appropriate United States Court of Appeals, to ensure that such an exception was at least facially made out.
In Hamdan v. Rumsfeld, 548 U.S. 557 (2006), Salim Ahmed Hamdan petitioned for a writ of habeas corpus, challenging that the military commissions set up by the Bush administration to try detainees at Guantánamo Bay “violate both the Uniform Code of Military Justice and the four Geneva Conventions.” In a 5-3 ruling, the Supreme Court rejected Congress's attempts to strip the courts of jurisdiction over habeas corpus appeals by detainees at Guantánamo Bay. Congress had previously passed the Department of Defense Appropriations Act of 2006 which stated in Section 1005(e), “Procedures for Status Review of Detainees Outside the United States”:
On 29 September, 2006, the House and Senate approved the Military Commissions Act of 2006 (MCA), a bill that would remove habeas corpus for any person determined to be an “unlawful enemy combatant" engaged in hostilities or having supported hostilities against the United States” by a vote of 65–34. (This was the result on the bill to approve the military trials for detainees; an amendment to remove the unavailability of habeas corpus failed 48–51.) President Bush signed the Military Commissions Act of 2006 into law on October 17, 2006. The declaration of a person as an "unlawful enemy combatant" is at the discretion of the US executive branch of the administration, and there is no right of appeal, with the result that this potentially eliminates habeas corpus for any non-citizen.
With the MCA's passage, the law altered the language from “alien detained … at Guantánamo Bay”:
On 20 February, 2007, the U.S. Court of Appeals for the District of Columbia Circuit upheld this provision of the MCA in a 2-1 decision of the Case Boumediene v. Bush. The Supreme Court let the Circuit Court's decision stand by refusing to hear the detainees' appeal. On June 29, 2007, the U.S. Supreme Court reversed its April 2007 decision and agreed to hear the appeals of Guantanamo detainees who are seeking habeas corpus review of their detentions.
Under the MCA, the law restricts habeas appeals for only those aliens detained as "enemy combatants," or awaiting such determination. Left unchanged is the provision that, after such determination is made, it is subject to appeal in U.S. Court, including a review of whether the evidence warrants the determination. If the status is upheld, then their imprisonment is deemed lawful.
There is, however, no legal time limit which would force the government to provide a Combatant Status Review Tribunal (CSRT) hearing. Prisoners are legally prohibited from petitioning any court for any reason before a CSRT hearing takes place.
On January 17, 2007, Attorney General Gonzales asserted in Senate testimony that while habeas corpus is "one of our most cherished rights," the United States Constitution does not expressly guarantee habeas rights to United States residents or citizens. As such, the law could be extended to U.S. citizens and held if left unchecked.
As Robert Parry writes in the Baltimore Chronicle & Sentinel:
Applying Gonzales’s reasoning, one could argue that the First Amendment doesn’t explicitly say Americans have the right to worship as they choose, speak as they wish or assemble peacefully.
Ironically, Gonzales may be wrong in another way about the lack of specificity in the Constitution’s granting of habeas corpus rights. Many of the legal features attributed to habeas corpus are delineated in a positive way in the Sixth Amendment...
To date, there has been at least one confirmed case in which non-American civilians have been incorrectly classified as enemy combatants.
On June 7, 2007, the Habeas Corpus Restoration Act of 2007 was approved by the Senate Judiciary Committee with an 11-8 vote split along party lines, with all but one Republican voting against it. Although the Act would restore statutory habeas corpus to enemy combatants, it would not overturn the provisions of the AEDPA which set a statute of limitations on habeas corpus claims from ordinary civilian federal and state prisoners.
On June 11, 2007, a federal appeals court ruled that Ali Saleh Kahlah al-Marri, a legal resident of the United States, could not be detained indefinitely without charge. In a two-to-one ruling by the Fourth Circuit Court of Appeals, the Court held the President of the United States lacks legal authority to detain al-Marri without charge; all three judges ruled that al-Marri is entitled to traditional habeas corpus protections which give him the right to challenge his detainment in a U.S. Court.
On June 12, 2008, the United States Supreme Court ruled 5-4 in Boumediene v. Bush that terror suspects detained by the United States in Guantanamo Bay detainment camp have the right to seek a writ of habeas corpus in US Federal Court.
In July 2008, the Richmond-based 4th Circuit Court rules: "if properly designated an enemy combatant pursuant to the legal authority of the President, such persons may be detained without charge or criminal proceedings for the duration of the relevant hosilities.
On October 7, 2008, US District Court judge Ricardo M. Urbina ruled that 17 Uyghurs, Muslims from China's northwestern Xinjiang region, must be brought to appear in his court in Washington, DC, three days later: "Because the Constitution prohibits indefinite detentions without cause, the continued detention is unlawful."
The writ of habeas corpus as a procedural remedy is part of Australia's English law inheritance.
In 2005, the Australian parliament passed the Australian Anti-Terrorism Act 2005. Some legal experts questioned the constitutionality of the act, due in part to limitations it placed on habeas corpus.
Suspension of the writ in Canadian history occurred famously during the October Crisis, during which the War Measures Act was invoked by Prime Minister Pierre Trudeau at the request of the Quebec and Montreal governments. The Act was also used to justify German, Slavic, and Ukrainian Canadian internment during the First World War, and Japanese Canadian internment during the Second World War. Both internments were eventually recognized by acts of parliament as historical wrongs. Habeas corpus rights were enshrined in the Constitution Act 1982, via the Legal Rights section of the Charter of Rights and Freedoms.
In Ireland the principle of habeas corpus is guaranteed by Article 40, Section 4 of the Irish constitution. This guarantees "personal liberty" to each individual and outlines a detailed habeas corpus procedure, without actually mentioning the Latin term. However it also provides that habeas corpus is not binding on the Defence Forces during a state of war or armed rebellion.
The state inherited habeas corpus as part of the common law when it seceded from the United Kingdom in 1922, but the principle was also guaranteed by Article 6 of the Constitution of the Irish Free State in force from 1922 to 1937. A similar provision was included when the current constitution was adopted in 1937. Since that date habeas corpus has been restricted by two constitutional amendments, the Second Amendment in 1941 and the Sixteenth Amendment in 1996.
Before the Second Amendment, an individual detained had the constitutional right to apply to any High Court judge for a writ of habeas corpus and to as many High Court judges as they wished. Since the Second Amendment, a prisoner has a right to apply to only one judge, and, once a writ has been issued, the President of the High Court has authority to choose the judge or panel of three judges who will decide the case. The amendment also added a requirement that when the High Court believed someone's detention to be invalid due to the unconstitutionality of a law, it must refer the matter to the Irish Supreme Court and may release the individual on bail only in the interim.
In 1965, the Supreme Court ruled in the O'Callaghan case that the provisions of the constitution meant that an individual charged with a crime could be refused bail only if they were likely to flee or to interfere with witnesses or evidence. Since the Sixteenth Amendment, it has been possible for a court to take into account whether a person has committed serious crimes while on bail in the past.
The Indian judiciary has dispensed with the traditional doctrine of locus standi. If a detained person is not in a position to file a petition, it can be moved on his behalf by any other person. The scope of habeas relief has expanded in recent times by actions of the Indian judiciary. The habeas writ was used in the Rajan criminal case.
In Malaysia, the right of habeas corpus is enshrined in the Federal Constitution, though the name habeas corpus is not used. Article 5(2) provides that "Where complaint is made to a High Court or any judge thereof that a person is being unlawfully detained the court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the court and release him."
As there are several statutes, for example, the Internal Security Act 1960, that still permit detention without trial, the procedure is usually effective in such cases only if it can be showed that there was a procedural error in the way that the detention was ordered.
An act similar to Habeas corpus was adopted in Poland as early as in 1430. Neminem captivabimus, short for neminem captivabimus nisi iure victum, (Latin, "We shall not arrest anyone without a court verdict") was one of the basic rights in Poland and Polish-Lithuanian Commonwealth, stating that the king can neither punish nor imprison any member of the szlachta without a viable court verdict. Its purpose is to release someone who has been arrested unlawfully. Neminem captivabimus has nothing to do with whether the prisoner is guilty, only with whether due process has been observed.
The Constitution of Portugal states that Habeas corpus shall be available to counter the misuse of power in the form of illegal arrest, imprisonment or detention. According to the Portuguese Penal Process Code, the application for it shall be made to the judge conducting the preliminary investigations or to the Portuguese Supreme Court of Justice.
The reasons that may justify an habeas corpus are: exceeded the period to deliver the detainee to judicial power; exceeded the detention period stated by law or judicial decision; detention outside the legally allowed places; detention ordered by an incompetent authority; and detention motivated for fact for which the law does not allow detention.
The Spanish Constitution states that A habeas corpus procedure shall be provided for by law in order to ensure the immediate handing over to the judicial authorities of any person illegally arrested. The law which regulates the procedure is the Law of Habeas Corpus of 24 May 1984 which provides that a person imprisoned may, on his own or through a third person, allege his Habeas Corpus right and request to appear before a judge. The request must specify the grounds on which the detention is considered to be unlawful which can be, for example, that the imprisoner does not have the legal authority, or that the prisoner's constitutional rights were violated or that he was subject to mistreatment, etc. The judge may then request additional information if needed and may issue an Habeas Corpus order at which point the holding authority has 24 hours to bring the prisoner before the judge.
In the Bill of Rights in the Filipino Constitution, habeas corpus is listed near-identically to the U.S. Constitution in Article 3, Section 15:
"The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion when the public safety requires it."