“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.” Article 1, Section 9, Clause 2, US Constitution.
Preventing suspension of the Writ of Habeas Corpus is a limitation of the power granted to Congress; it is power denied to Congress except under extreme circumstances.
According to Jonathan Turley, J.B. and Maurice C. Shapiro Professor of Public Interest Law Director, Environmental Law Advocacy Center Executive Director, Project for Older Prisoners, The George Washington University Law School, writing for Heritage Foundation, the definition of habeas corpus is an “order by a common law court to require a person holding a prisoner to demonstrate the legal and jurisdictional basis for holding the prisoner. If there is no basis for holding the prisoner, the court will order the release of the prisoner”.
The words “habeas corpus” are translated “you have the body”. The “body” would be the person being held prisoner. In other words, if the court issued a writ of habeas corpus to you when you were holding a prisoner, you would have to bring that prisoner before the court and state why you were holding him captive. If the court did not see legal reasons, they would order you to release the person.
This was inherited from English law. It is procedural in character and defines no rights. The point of the “Great Writ” was to offer a person charged with a crime protection against illegal arrest and confinement. It is an important check on illegal use of power by the executive. In other words, it prevents the Executive Branch (President and company) from putting you in jail because you speak out or disagree with what is being done in government.
In Federalist No. 48, Alexander Hamilton says that the Writ of Habeas Corpus is necessary to protect against “The favorite and most formidable instruments of tyranny”.
This clause was originally in Article III of the Constitution. It was moved to Article I by the Committee of Style during the Constitutional Convention, suggesting that the suspension of the Writ of Habeas Corpus was viewed as legislative power. If Habeas Corpus were suspended, that would mean that you could be thrown in jail without cause, just for something like disagreeing with the governmental power or decisions.
President Lincoln suspended the Writ of Habeas Corpus because of the Civil War. This was because of rebellion, as in secession of the Southern States. There was fear that pro-Confederate mobs would not allow assembly of militias in places like Baltimore.
The famous law case associated with this period of history and illustrating the concept of suspension of the Writ of Habeas Corpus is called Ex Parte Merryman (1861). In this case, Merryman was imprisoned by military order at Fort McHenry (Baltimore) because he was believed to be involved in pro-Confederate activities. Supreme Court Justice, Roger B. Taney (acting as a federal circuit court judge) issued a Writ of Habeas Corpus because Merryman was illegally imprisoned. The General Cadwalader refused to obey the Writ because the President had suspended it.
Justice Taney cited Cadwalader for contempt of court and wrote an opinion of Article I, Section 9, stating that only Congress, not the President, had power to suspend the writ of Habeas Corpus.
President Lincoln ignored the ruling by Justice Taney. The case became moot in February 1862 when President Lincoln ordered the release of most of the people being held as political prisoners.
Since then, Congress has suspended the Writ of Habeas Corpus three times:
• South Carolina in 1871 to deal with Ku Klux Klan issues
• Philippines in 1905 because of a local revolt
• Hawaii during World War II
With national security issues after Sept. 11, 2001, the legal protections of the Writ of Habeas Corpus still exist. Congress has not suspended it. So, the ability to use the Writ is still available to “civilian and military prisoners claiming jurisdictional barriers to their continued detention or incarceration”, writes Jonathan Turley.
Article I, Section 9, Clause 2 allows we the people to deny the government the right to put people in jail and to hold them there without bringing charges, except in times of rebellion or invasion that could challenge the public safety.
We the people get protection from being jailed and held without explanation or reason.
References:
http://en.wikipedia.org/wiki/Ex_parte_Merryman
http://www.heritage.org/constitution/#!/articles/1/essays/61/habeas-corpus
Findlay, Bruce Allyn and Findlay, Esther Blair. Your Rugged Constitution. Stanford: Stanford University Press, 1950
McClellan, James. Liberty, Order, and Justice. Indianapolis, Liberty Fund, Inc., 2000