B.2(h). Habeas Corpus

Every Person has the Right to challenge their detention before a judge. Anyone held by the government must be brought before a judge within seventy-two (72) hours. The Right to a lawyer begins at the time of detention. This Right may not be suspended.

This right aligns with Due Process under the law. It technically is part of due process rights. So why even include it separately? Unfortunately, the United States government has a sorry history of finding loopholes to get around this right.

At the risk of sounding repetitive, over 100,000 Japanese-Americans were held in internment camps without meaningful habeas corpus during WWII. Military orders alone were seen as sufficient to round people up and put them in camps based solely on their ancestry. [1]

In multiple cases involving José Padilla, the government employed various technical and procedural dismissals to avoid adverse rulings. He was detained in May of 2002 as a material witness. In June, he was designated an enemy combatant and transferred to military custody (even though he was detained at O’Hare International Airport, not on the battlefield). His lawyers filed a habeas petition in Rumsfeld v. Padilla, but the Supreme Court dismissed it. They ruled that it should have been filed in South Carolina. [2] His team refiled his petition in South Carolina in Padilla v. Bush (which later became Padilla v. Hanft). [3]The government returned him to civilian custody, rendering his petition irrelevant in late 2005 or early 2006. This sequence shows how his right to habeas corpus was nullified, not by suspending the writ, but by strategic transfers to avoid adverse rulings and on technical procedural grounds, rather than the merits. When reviewing his case, in particular, it’s important to remember that bad defendants make good law. That is, constitutional protection applied to even the worst or least sympathetic defendants makes everyone more secure.

To this day, there are still fifteen or so individuals being held without charge in Guantánamo Bay. Of those fifteen, three await transfer, and three more are still held in law-of-war detention, without facing charges and without being recommended for release. Boumediene v. Bush, established in 2008, confirmed that these detainees have the right to file habeas corpus petitions. [4] It has been over fifteen years since Boumediene, but those three remain in indefinite detention. Because of the circumstances surrounding their capture and detention, the three still held in detention have no effective relief. The three awaiting transfer are also stuck in limbo because their transfers have been approved; therefore, there is no technical basis for a habeas petition. However, there is nowhere to transfer them, so they remain in indefinite detention.

We have determined that the civil detentions we use for immigration purposes don't provide the same level of protection. Immigrants have the same constitutional rights as everyone else. [5] However, those rights end at the point where Congress exercises its plenary power over immigration (which it has since delegated to the executive branch). [6] In any matter regarding their deportation, immigrants are not entitled to the same constitutional rights as other individuals. So, with this ruling, the Supreme Court effectively said, “You have rights until we say you don’t.”

We have enacted laws that “preserve" due process requirements, but make them impossible to access. They erect layers of procedural hurdles that have to be overcome before a person can challenge their detention in federal court. Federal courts have limited circumstances under which they can grant relief to prisoners. [7]

The concept of habeas corpus is older than our Republic. These protections are not a new addition to the legal landscape. I will point out that in the modern day, the Founders would likely be labeled terrorists by the British. The need for an unfiltered and robust right to habeas corpus is clear. This provision addresses that need. The language is tight. Every person has a right to challenge their detention. There is no distinction between criminal and civil. It has to happen within seventy-two hours. Is your detainee arrested on a long weekend? The convenience of the court is irrelevant. The right to counsel begins at the time of arrest or detention, not when the person is charged.

Due process and habeas corpus matter. They protect everyone, or they protect no one. This provision accepts that reality. This is not novel; it is simply refreshing and updating the right.

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[1] In Korematsu v. United States, 323 U.S. 214 (1944), the court didn’t rule directly on habeas corpus, since that was not material to the case. However, by finding that the underlying detention was constitutional, they effectively made habeas corpus petitions futile.

[2] Rumsfeld v. Padilla, 542 U.S. 426 (2004).

[3] Padilla v. Hanft, 547 U.S. 1062 (2006)

[4] Boumediene v. Bush, 553 U.S. 723 (2008).

[5] Yick Wo v. Hopkins, 118 U.S. 356 (1886).

[6] Fong Yue Ting v. United States, 149 U.S. 698 (1893).

[7] Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996).