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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)
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
< http://en.wikipedia.org/?title=Talk:Habeas_corpus&diff=62082135&oldid=56030482 >;
< http://en.wikipedia.org/?title=Talk:Habeas_corpus&diff=77428192&oldid=74515588 >.
hopiakuta 16:41, 29 September 2006 (UTC)
hopiakuta 16:41, 29 September 2006 (UTC)
< http://en.wikipedia.org/?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)
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 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)
"...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)
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 >;
hopiakuta ; [[ <nowiki> </nowiki> { [[%c2%a1]] [[%c2%bf]] [[ %7e%7e%7e%7e ]] } ;]] 06:32, 27 October 2006 (UTC)
When you don't sign, you can cause
for many of us.
hopiakuta ; [[ <nowiki> </nowiki> { [[%c2%a1]] [[%c2%bf]] [[ %7e%7e%7e%7e ]] } ;]] 13:59, 8 November 2006 (UTC)
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.
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)
Regarding wikipedia policy on the use of sources:
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
~~~~
); 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)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)
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)
“ | 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. |
” |
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)
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)
Should "Habeas corpus" truly be, "You shall have the body?
LtDonny 23:17, 22 January 2007 (UTC)
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)
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.
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)
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)
While converting inline web links to references, I noticed the following sentence:
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)
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)
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)
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)
(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.
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 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.
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)
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)
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)
I don't think this should have been deleted.
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. [1] 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." [2] Israeli soldiers used the Hebrew word tertur to describe the new policy in which this practice was recommended. [3]
- - 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." [4]
- - 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." [5]
- 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. [6] Padres Hana ( talk) 11:07, 27 June 2011 (UTC)
References
'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)
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)
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)
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.
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.
(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.
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)
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.
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).
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)
'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)
I've removed an old neutrality tag from this page that appears to have no active discussion per the instructions at Template:POV:
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)
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.
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)
"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)
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?)
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)
"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? E x nihil ( talk) 03:36, 21 April 2017 (UTC)
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)
![]() | This is an archive of past discussions. Do not edit the contents of this page. If you wish to start a new discussion or revive an old one, please do so on the current talk page. |
Archive 1 |
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)
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
< http://en.wikipedia.org/?title=Talk:Habeas_corpus&diff=62082135&oldid=56030482 >;
< http://en.wikipedia.org/?title=Talk:Habeas_corpus&diff=77428192&oldid=74515588 >.
hopiakuta 16:41, 29 September 2006 (UTC)
hopiakuta 16:41, 29 September 2006 (UTC)
< http://en.wikipedia.org/?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)
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 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)
"...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)
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 >;
hopiakuta ; [[ <nowiki> </nowiki> { [[%c2%a1]] [[%c2%bf]] [[ %7e%7e%7e%7e ]] } ;]] 06:32, 27 October 2006 (UTC)
When you don't sign, you can cause
for many of us.
hopiakuta ; [[ <nowiki> </nowiki> { [[%c2%a1]] [[%c2%bf]] [[ %7e%7e%7e%7e ]] } ;]] 13:59, 8 November 2006 (UTC)
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.
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)
Regarding wikipedia policy on the use of sources:
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
~~~~
); 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)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)
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)
“ | 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. |
” |
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)
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)
Should "Habeas corpus" truly be, "You shall have the body?
LtDonny 23:17, 22 January 2007 (UTC)
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)
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.
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)
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)
While converting inline web links to references, I noticed the following sentence:
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)
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)
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)
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)
(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.
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 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.
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)
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)
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)
I don't think this should have been deleted.
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. [1] 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." [2] Israeli soldiers used the Hebrew word tertur to describe the new policy in which this practice was recommended. [3]
- - 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." [4]
- - 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." [5]
- 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. [6] Padres Hana ( talk) 11:07, 27 June 2011 (UTC)
References
'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)
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)
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)
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.
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.
(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.
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)
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.
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).
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)
'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)
I've removed an old neutrality tag from this page that appears to have no active discussion per the instructions at Template:POV:
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)
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.
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)
"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)
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?)
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)
"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? E x nihil ( talk) 03:36, 21 April 2017 (UTC)
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)