法律英语：78 The Writ of Habeas Corpus

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 licensed¹ to practice in your jurisdiction².  Further, I do not intend to create an attorney-client relationship with any listener.
Today’s topic is habeas corpus. Ken³ 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 writ⁴ 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 custodian⁵, 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 lawful⁶ authority to hold that person, or, if not, the person should be released from custody⁷. 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 embodied⁸ in the Magna Carta, which prohibited imprisonment⁹ or seizure¹⁰ of land “except by lawful judgment¹¹.”

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.” 

Over the years, the writ of habeas corpus has generally been used as a tool by those imprisoned¹² to force the government to show to a neutral judge why it has the jurisdiction and authority to detain someone. It is important to note that, a prisoner seeking a writ of habeas corpus is not asking the federal reviewing court to determine his guilt¹³ or innocence¹⁴, but merely whether his incarceration¹⁵ is supported by the law. In state court convictions, only a fundamental constitutional error in a trial will compel the granting of the great writ.

That tool, as expressed in the Constitution, can be suspended in certain situations. For example, General Andrew Jackson declared martial¹⁶ law in New Orleans during the War of 1812 and arrested people. A federal court judge issued a writ of habeas corpus, but Jackson blocked their release. Jackson was fined $1000 for contempt of court after refusing to produce the prisoners. Incidentally, Jackson lobbied Congress for a refund¹⁷ of the $1000 fine he paid, which was granted in 1844.

During the Civil War, President Lincoln suspended habeas corpus in areas where militia¹⁸ activity and rioting threatened civil society. In 1864, several men were accused of planning to steal Union Weapons, and they were convicted and sentenced to die in military courts. However, the executions were not set until 1865, when the civil courts had been restored. The Supreme¹⁹ Court ruled that that writ of habeas corpus could not be suspended when the civil courts were functioning.

Two main court cases in 1942 and 1950 set the stage for today’s debate over who can access habeas corpus. In 1942, the Supreme Court ruled in that unlawful combatant saboteurs could be denied habeas corpus and tried by military commission, making a distinction between lawful and unlawful combatants. In 1950, the Court denied access to habeas corpus for nonresident aliens captured and imprisoned abroad in a US-administered foreign court.

Today, the debate centers around those people imprisoned as “enemy combatants” held at Guantanamo Bay. The Bush administration previously²⁰ utilized²¹ statutes²² passed by Congress to detain, indefinitely, and without any review, those defendants²³ who were deemed “enemy combatants.” However, in 2004, the Supreme Court ruled that U.S. Citizens still maintained the right to habeas corpus, and in 2006, the Court held that the military tribunals set up by the administration were unconstitutional. Today, the fate of those held at Guantanamo, and those labeled as enemy combatants is unclear.

The main reason that habeas corpus is important today is the same reason that it has been important for its 800 year history: it prevents the government from imprisoning²⁴ you without proving that it has some reason. Without habeas corpus, the government might be free to throw you in jail for no reason, and then not have to answer for it. It fundamentally requires the state to justify²⁵ its actions. Its current application to detainees, enemy combatants, prisoners, however classified still asks the question of, what do we want the government to be able to do without justifying²⁶ its actions in a court, and when can it do so?

That question cannot be answered in this short podcast, and will not be answered definitively²⁷ for years to come. The Supreme Court currently has several cases on this issue, and all we can do is wait and see what happens.  

Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful Life.  Be sure to check out all the excellent Quick and Dirty Tips podcasts at QuickAndDirtyTips.com.

You can send questions and comments to。。。。。。or call them in to the voicemail line at 206-202-4LAW.  Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this podcast only.

Legal Lad's theme music is "No Good Layabout" by Kevin MacLeod.
 

1 licensed   

adj.得到许可的v.许可，颁发执照(license的过去式和过去分词)

参考例句：

• The new drug has not yet been licensed in the US. 这种新药尚未在美国获得许可。
• Is that gun licensed? 那支枪有持枪执照吗？

2 jurisdiction   

n.司法权，审判权，管辖权，控制权

参考例句：

• It doesn't lie within my jurisdiction to set you free.我无权将你释放。
• Changzhou is under the jurisdiction of Jiangsu Province.常州隶属江苏省。

3 ken   

n.视野，知识领域

参考例句：

• Such things are beyond my ken.我可不懂这些事。
• Abstract words are beyond the ken of children.抽象的言辞超出小孩所理解的范围.

4 writ   

n.命令状，书面命令

参考例句：

• This is a copy of a writ I received this morning.这是今早我收到的书面命令副本。
• You shouldn't treat the newspapers as if they were Holy Writ. 你不应该把报上说的话奉若神明。

5 custodian   

n.保管人，监护人；公共建筑看守

参考例句：

• Benitez believes his custodian is among the top five in world football.贝尼特斯坚信他的门将是当今足坛最出色的五人之一。
• When his father died his uncle became his legal custodian.他父亲死后，他叔叔成了他的法定监护人。

6 lawful   

adj.法律许可的，守法的，合法的

参考例句：

• It is not lawful to park in front of a hydrant.在消火栓前停车是不合法的。
• We don't recognised him to be the lawful heir.我们不承认他为合法继承人。

7 custody   

n.监护，照看，羁押，拘留

参考例句：

• He spent a week in custody on remand awaiting sentence.等候判决期间他被还押候审一个星期。
• He was taken into custody immediately after the robbery.抢劫案发生后，他立即被押了起来。

8 embodied   

v.表现( embody的过去式和过去分词 )；象征；包括；包含

参考例句：

• a politician who embodied the hopes of black youth 代表黑人青年希望的政治家
• The heroic deeds of him embodied the glorious tradition of the troops. 他的英雄事迹体现了军队的光荣传统。 来自《简明英汉词典》

9 imprisonment   

n.关押，监禁，坐牢

参考例句：

• His sentence was commuted from death to life imprisonment.他的判决由死刑减为无期徒刑。
• He was sentenced to one year's imprisonment for committing bigamy.他因为犯重婚罪被判入狱一年。

10 seizure   

n.没收；占有；抵押

参考例句：

• The seizure of contraband is made by customs.那些走私品是被海关没收的。
• The courts ordered the seizure of all her property.法院下令查封她所有的财产。

11 judgment   

n.审判；判断力，识别力，看法，意见

参考例句：

• The chairman flatters himself on his judgment of people.主席自认为他审视人比别人高明。
• He's a man of excellent judgment.他眼力过人。

12 imprisoned   

下狱，监禁( imprison的过去式和过去分词 )

参考例句：

• He was imprisoned for two concurrent terms of 30 months and 18 months. 他被判处30个月和18个月的监禁，合并执行。
• They were imprisoned for possession of drugs. 他们因拥有毒品而被监禁。

13 guilt   

n.犯罪；内疚；过失，罪责

参考例句：

• She tried to cover up her guilt by lying.她企图用谎言掩饰自己的罪行。
• Don't lay a guilt trip on your child about schoolwork.别因为功课责备孩子而使他觉得很内疚。

14 innocence   

n.无罪；天真；无害

参考例句：

• There was a touching air of innocence about the boy.这个男孩有一种令人感动的天真神情。
• The accused man proved his innocence of the crime.被告人经证实无罪。

15 incarceration   

n.监禁，禁闭；钳闭

参考例句：

• He hadn't changed much in his nearly three years of incarceration. 在将近三年的监狱生活中，他变化不大。 来自辞典例句
• Please, please set it free before it bursts from its long incarceration! 请你，请你将这颗心释放出来吧！否则它会因长期的禁闭而爆裂。 来自辞典例句

16 martial   

adj.战争的，军事的，尚武的，威武的

参考例句：

• The sound of martial music is always inspiring.军乐声总是鼓舞人心的。
• The officer was convicted of desertion at a court martial.这名军官在军事法庭上被判犯了擅离职守罪。

17 refund   

v.退还，偿还；n.归还，偿还额，退款

参考例句：

• They demand a refund on unsatisfactory goods.他们对不满意的货品要求退款。
• We'll refund your money if you aren't satisfied.你若不满意，我们愿意退款给你。

18 militia   

n.民兵，民兵组织

参考例句：

• First came the PLA men,then the people's militia.人民解放军走在前面，其次是民兵。
• There's a building guarded by the local militia at the corner of the street.街道拐角处有一幢由当地民兵团守卫的大楼。

19 supreme   

adj.极度的，最重要的；至高的，最高的

参考例句：

• It was the supreme moment in his life.那是他一生中最重要的时刻。
• He handed up the indictment to the supreme court.他把起诉书送交最高法院。

20 previously   

adv.以前，先前（地）

参考例句：

• The bicycle tyre blew out at a previously damaged point.自行车胎在以前损坏过的地方又爆开了。
• Let me digress for a moment and explain what had happened previously.让我岔开一会儿，解释原先发生了什么。

21 utilized   

v.利用，使用( utilize的过去式和过去分词 )

参考例句：

• In the19th century waterpower was widely utilized to generate electricity. 在19世纪人们大规模使用水力来发电。 来自《简明英汉词典》
• The empty building can be utilized for city storage. 可以利用那栋空建筑物作城市的仓库。 来自《简明英汉词典》

22 statutes   

成文法( statute的名词复数 )； 法令； 法规； 章程

参考例句：

• The numerous existing statutes are complicated and poorly coordinated. 目前繁多的法令既十分复杂又缺乏快调。 来自英汉非文学 - 环境法 - 环境法
• Each agency is also restricted by the particular statutes governing its activities. 各个机构的行为也受具体法令限制。 来自英汉非文学 - 环境法 - 环境法

23 defendants   

被告( defendant的名词复数 )

参考例句：

• The courts heard that the six defendants had been coerced into making a confession. 法官审判时发现6位被告人曾被迫承认罪行。
• As in courts, the defendants are represented by legal counsel. 与法院相同，被告有辩护律师作为代表。 来自英汉非文学 - 政府文件

24 imprisoning   

v.下狱，监禁( imprison的现在分词 )

参考例句：

• Mr Afwerki may disgust his compatriots by torturing and imprisoning his critics. Afwerki总统拷打和监禁他的反对者已经使的国人生厌。 来自互联网
• Proud and intelligent, it takes great pleasure and imprisoning enemies through psionic exploitation. 它骄傲并狡猾，非常喜欢囚禁敌人并剥夺他们的智力。 来自互联网

25 justify   

vt.证明…正当(或有理)，为…辩护

参考例句：

• He tried to justify his absence with lame excuses.他想用站不住脚的借口为自己的缺席辩解。
• Can you justify your rude behavior to me?你能向我证明你的粗野行为是有道理的吗？

26 justifying   

证明…有理( justify的现在分词 )； 为…辩护； 对…作出解释； 为…辩解（或辩护）

参考例句：

• He admitted it without justifying it. 他不加辩解地承认这个想法。
• The fellow-travellers'service usually consisted of justifying all the tergiversations of Soviet intenal and foreign policy. 同路人的服务通常包括对苏联国内外政策中一切互相矛盾之处进行辩护。

27 definitively   

adv.决定性地，最后地

参考例句：

• None of the three super-states could be definitively conquered even by the other two in combination. 三个超级国家中的任何一国都不可能被任何两国的联盟所绝对打败。 来自英汉文学
• Therefore, nothing can ever be definitively proved with a photograph. 因此，没有什么可以明确了一张照片。 来自互联网