Habeas Corpus - Another “Body” from Latin and Law

There’s another ‘body’ that people vaguely hear on the news and few people ever really figure it out.  Unlike the ‘Corpus Delecti’ I wrote about last week, this is a real body.  This is the specific body that the United States Constitution refers to in Article 1, Section 9, and Clause 2.

The actual wording in the constitution is: “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.”

Simply put: the ‘Writ’ means a written request for a specific body that is in jail.  The body, of course has a name: let’s call the body ‘James Doe’.  Anyway, the Constitution says in that one sentence that a written request for the body of James Doe will be honored (or not suspended) so that James Doe can go before a Court and ask why he’s been arrested.   But the sentence also refers to cases of rebellion or invasion and that it’s possible that the public safety may need to have James Doe locked up and basically throw away the key.

There was a big hullabaloo a few years ago about all this Habeas Corpus right as it is in the Constitution.  I’m taking no pro or con position in this situation.  I’m simply trying to explain what has been happening in the news and world.

The original reason for the loud arguments in the news was that after 9/11 and our entry into Afghanistan, the Bush Administration decided that the Al Qaeda and Taliban prisoners we caught there might want this kind of Constitutional
protection {Article 1, Section 9, and Clause 2}.  So the Administration decided that if the prisoners were NOT held anywhere inside the actual boundaries of the United States, the prisoners would not have any of our Constitutional rights.  The Guantanamo Bay (Gitmo) prison came into being on the island of Cuba.

The problem was that just holding the prisoners was/is a violation of international law because in numerous cases the prisoners were not combatants.  They were civilians.  Of course, by now we all know that while we are a ‘nation state’ with a regular army, etc. our enemies in the War on Terror are most often combatants who disguise themselves as civilians or hide in civilian populations.  That could lead to our side accidently grabbing a ‘real’ civilian who happened to be in the wrong place at the wrong time.  This fact alone causes a true conundrum.  How can we figure out the difference between a ‘real’ civilian and a non-military enemy?

That, by the way, is exactly why English ‘common law’ and our Constitution  insists on having a ‘Habeas Corpus’ clause.  If it is your body in jail and if your name is James Doe you’d be screaming bloody murder about the unfairness of your predicament.
Most of the ‘Habeas Corpus’ writs are, in fact, done by the prisoners themselves in United States prisons (more Latin - ‘pro se’ means ‘by yourself’).  But the prisoners in Gitmo couldn’t petition anyone.  In fact, a “the Military Commissions Act of 2006” made sure they never received the right of ‘Habeas Corpus’.


Eventually the prisoners did receive attorneys and the lawyers wrote the writs of habeas corpus.  There were a number of cases that were filed against President Bush and Donald Rumsfeld.  Eventually the entire mess ended up before the United States Supreme Court which, in a 5 to 4 decision, said that the prisoners had a right to the habeas corpus under the United States Constitution and that the Military Commissions Act of 2006 was an unconstitutional suspension of that right.  The Supreme Court basically said that although Guantanamo Bay is on the island of Cuba, the United States maintains the de facto (even more Latin – means ‘in fact’) sovereignty over that part of the Cuban Island and therefore could not deny the right of ‘Habeas Corpus’ as stated in the U.S. Constitution.
Of course the entire Court case is a lot more complicated than what I’ve written.  In fact, various aspects are still playing out in Gitmo. However, I wanted to let my readers know that the Latin word ‘Corpus’ can refer to a ‘body of evidence’ as in ‘Corpus Delecti’.  Or the Latin word ‘Corpus’ can refer to an actual human body that’s in jail.

Filed under: Criminal Justice, Law

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