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The Writ of Habeas Corpus

What it is, why it's important, and under what circumstances it can be denied?

By
Michael W. Flynn

First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction.  Further, I do not intend to create an attorney-client relationship with any listener.

Today’s topic is habeas corpus. Ken from Worcester, Massachusetts wrote:

Could you do a podcast primer on habeas corpus: what it is, why it's important, and under what circumstances it can be denied?

The writ of habeas corpus is considered by many to be the most basic and fundamental protection that citizens have against the state. It preserves our ability to force the government to show that it has the right to detain us. It is important today due to the current administration’s stance on who can apply for the writ, and who cannot.

Habeas corpus is Latin for “we command that you have the body.” Also known as “The Great Writ,” a writ of habeas corpus ad subjiciendum is a summons with the force of a court order addressed to a custodian, i.e. a prison, demanding that a prisoner be brought before the court, together with proof of authority, allowing the court to determine whether that custodian has lawful authority to hold that person, or, if not, the person should be released from custody. The prisoner, or another person on his behalf, may petition the court or an individual judge for a writ of habeas corpus. 

This procedure has its roots in England, and similar tools were used as early as the 12th Century. The general idea behind the writ was embodied in the Magna Carta, which prohibited imprisonment or seizure of land “except by lawful judgment.”

Article I, Section 9 of the United States Constitution, sometimes called the Suspension Clause, 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.”  

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