Habeas Corpus and Ensuring Constitutional Protections

Posted in Gitmo, Habeas Corpus, Jacob Canon, The Oscar Show, UVa College of Arts & Sciences, University of Virginia, Virginia Film Festival, history at 12:04 pm by Jacob Canon

In today’s show, adapted from an article written by freelance writer Karen Doss Bowman, we discuss the work of UVa Professor Paul Halliday, and his research of Habeas Corpus, the only specific right enshrined in the US Constitution.

Habeas corpus, the judicial means by which prisoners may demand that their jailer show a valid reason for their detention, is considered a bedrock of personal liberty in U.S. law—and is the only specific right enshrined in the U.S. Constitution.

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This summer, when the U.S. Supreme Court handed down its historic affirmation of the right of Guantánamo Bay detainees to challenge their confinement, one University of Virginia history professor’s research was critical to how the justices arrived at their decision.  For nearly a decade, Associate Professor of History Paul Halliday has been quietly studying the use of habeas corpus in England and its empire back to the 16th century and earlier.

James Oldham, St. Thomas More Professor of Law and Legal History at Georgetown University Law Center consulted with Halliday about the writ’s history for several amicus briefs written on behalf of the Guantánamo detainees.   Oldham said, “Paul is probably the most knowledgeable person on the planet about the historical scope of the writ of habeas corpus and its use in the Anglo-American tradition, and Halliday’s book on the subject (expected in 2010) “will rewrite that history [of habeas corpus] in a fundamental way.”

Halliday never dreamed he would be doing research on habeas corpus. But while immersed in research of litigation in 16th- and 17th-century English politics at London’s National Archives, he realized that documents concerning more than 11,000 habeas cases from the court of the King’s Bench—the king’s greatest common law court—remained bundled in their original files, most unopened since they were stored away hundreds of years ago.  Halliday said, “The more work I did, I realized that what’s in the archive and what’s been written [about habeas corpus] had nothing to do with one another.”

Scribbled on tiny scraps of parchment (1 or 2 inches by 8 to 10 inches) and written in Latin, many writs are rumpled, worm-eaten and soiled with coal dust, dirt or water stains. Halliday has since photographed thousands and noted their contents, which he then analyzes in an intricate computer database that tracks each case.

Halliday said he was surprised to learn that “The writ of habeas corpus was not founded on ideas about liberty.”  Instead, it was designed to ensure that individuals imprisoning people in the king’s name upheld the law and did not abuse their authority.

The key in the Supreme Court Guantánamo case (Boumediene v. Bush) was whether non-citizens are entitled to habeas corpus, and if so, whether they must be on American soil to use it.

A recent Virginia Law Review article by Halliday, and UVa Law School’s American legal historian G. Edward White, was cited four times in the decision by attorneys on both sides.  They both identified what Founding Fathers understood about habeas corpus and included the “Suspension Clause” in the Constitution, which reads: “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.”

Since 1789, the writ has been suspended only a few times, always controversially, including by Abraham Lincoln during the Civil War and following the Japanese attack on Pearl Harbor in 1941 allowing U.S. internment of people of Japanese descent.

The article also showed that the English court consistently allowed foreigners access to habeas corpus. In the 1640s, during the English Civil War, justices used habeas corpus to release those imprisoned by military officers. Halliday said, “Place was not the point in habeas litigation. People were.” And went on to say, “What we find in thousands of cases across thousands of miles are patterns revealing principles about habeas corpus.”

Having consulted Halliday about Gauntanamo cases, Jonathan Hafetz of the Brennan Center for Justice at New York University School of Law said, “Paul’s work sheds light on the original meaning and purpose of the Constitution’s guarantee of habeas corpus.  It shows that efforts to deny habeas corpus to detainees today, and to create prisons outside the law, contradicts centuries of history and tradition.”

You’ve been listening to the Oscar Show, I’m Jacob Canon.  Join us next week when we will look at MacArthur Fellow, Bill T. Jones, and his discussion of the Struggles for Art in Society.

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