The right of habeas corpus is the oldest human right in Anglo-Saxon law. It
even preceded the British Magna Carta of 1215 CE. The
latter confirms the right by stating:
In 1679 CE, the British Parliament passed the Habeas Corpus Act i. According
to Nat Hentoff of The Washington Times, It extended the "Great Writ" to
any citizen arbitrarily imprisoned "beyond the seas" including the
American colonies. While the U.S. Constitution was being written Thomas
Jefferson insisted in a letter to James Madison that habeas corpus be imbedded
in the body of the Constitution. He even wanted the right of habeas corpus to
continue even during times of insurrection or invasion. He won his main goal but
failed in his second.
"The practice of arbitrary imprisonments, have been, in all ages, the
favorite and most formidable instruments of tyranny."
During the early 19th century, in the case Ex Parte Bollman, Chief Justice
John Marshall, congratulated Congress for creating a system of federal
courts that gave judges the authority to issue writs of habeas corpus -- "this
great constitutional privilege."
During the late 20th century, Leonard Levy was the editor in chief of the "Encyclopedia
of the American Constitution" One chapter is devoted to habeas corpus. It
states, in part:
"A measure of the state of liberty in the United States is that so
much of our constitutional liberties can be taken for granted.
The encyclopedia states that an essential definition of our freedom "from
arbitrary authority" is habeas corpus and:
"The existence of the Great Writ precisely in its taken-for-granted
quality plays a major role in supporting and reinforcing the conditions of
Habeas Corpus suspended:
A fundamental human right guaranteed for eight centuries can be denied, both
for both citizens and non-citizens at any time.
Robert Parry of the Baltimore Chronicle wrote:
"Under the cloak of setting up military tribunals to try al-Qaeda
suspects and other so-called 'unlawful enemy combatants,' Bush and the
Republican-controlled Congress effectively created a parallel legal system
for 'any person' – American citizen or otherwise – who crosses some
He is referring to the Military Commissions Act of 2006 which was
signed into law during 2006-OCT. It strips federal courts of the authority to
hear habeas corpus suits by those persons who have been classified by the
government as "enemy combatants." The law contains a section stating that:
"... any person subject to this chapter who,
in breach of an allegiance or duty to the
United States, knowingly and intentionally aids an enemy of the
United States ... shall be punished as a military commission … may direct."
The phrase "any person" would seem to include everyone, whether they
are a citizen of the United States or a non-citizen.
Once a person is detained:
"... no court, justice, or judge shall have jurisdiction to hear or
consider any claim or cause of action
whatsoever … relating to the prosecution, trial, or judgment of a
military commission under this chapter, including challenges to the
lawfulness of procedures of military commissions."
The phrase "any claim or cause of action
whatsoever" would seem to include a writ
of habeas corpus.
Senators Patrick Leahy, (D-VT), the Chairperson of the Judiciary Committee
and Arlen Specter (R-PA), the committee's ranking Republican have co-sponsored a
bill to repeal this law. 3
Attorney general repudiates habeas corpus:
Robert Parry of the Baltimore Chronicle wrote:
"In one of the most chilling public statements ever made by a U.S.
Attorney General, Alberto Gonzales questioned whether the U.S. Constitution
grants habeas corpus rights of a fair trial to every American."
"Responding to questions from Sen. Arlen Specter at a Senate Judiciary
Committee hearing on Jan. 18, Gonzales argued that the Constitution doesn’t
explicitly bestow habeas corpus rights; it merely says when the so-called
Great Writ can be suspended. " 3
At a Senate Judiciary Committee hearing on 2007-JAN-18, Attorney General
Alberto Gonzales engaged in the following exchange with Senator Arlen Specter
(R-PA), the committee's ranking Republican:
Gonzales: "There is no express grant of habeas in the Constitution.
There's a prohibition against taking it away. ..."
Specter: "Wait a minute. Wait a minute. The Constitution says you can't take
it away except in cases of rebellion or invasion. Doesn't that mean you have
the right of habeas corpus unless there's 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. Doesn't say that. It simply says the right of
habeas corpus shall not be suspended except..."
Specter: "You may be treading on your interdiction and violating common
sense, Mr. Attorney General." 4
The implication is that the Attorney General believes that Congress can
either reduce habeas corpus rights or eliminate them entirely, as they seem to
have done in the Military Commissions Act of 2006.
Later during the hearing, the attorney general said.
"I believe that the right of habeas is something that's very, very
important, one of our most cherished rights."
But he did not say that it is a universal right guaranteed to all prisoners
in the U.S. -- citizens or not.
Erwin Chemerinsky, a professor at Duke University said:
"This is the key protection that people have if they're held in violation
of the law. If there's no habeas corpus, and if the government wants to pick
you or me off the street and hold us indefinitely, how do we get our
Douglas Kmiec, a professor at Pepperdine University said that if Gonzales'
"One of the basic protections of human liberty against the powers of the
state would be embarrassingly absent from our constitutional system.''
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
"Glossary of Legal Terms," Utah State Courts, at:
Nat Hentoff, "Wrong on habeas corpus ; Gonzales misstates the facts," The
Washington Times, 2007-FEB-05, at:
Robert Parry, "Gonzales Questions Habeas Corpus," Baltimore Chronicle,
- Bob Egelko, "Gonzales says the Constitution doesn't guarantee habeas corpus:
Attorney general's remarks on citizens' right astound the chair of Senate
judiciary panel," San Francisco Chronicle, 2007-JAN-24.
Copyright © 2007 by Ontario
Consultants on Religious Tolerance
Originally written: 2007-FEB-06
Latest update: 2007-FEB-06
Author: B.A. Robinson