True Writ

HABEAS CORPUS, SECRET COURTS & GITMO

A celebrated declaration is engraved above the portal of Langdell Hall, the central building of Harvard Law School: non sub homine sed sub deo et lege (“not under man but under God and law”). That was the brave admonition of Lord Edward Coke (1552–1634) to King James I when the monarch imprisoned one of his subjects peremptorily. The old judicial remedy for such misconduct by the chief executive was a special form of the writ known as habeas corpus (literally, “have the body”).

A state committed to the rule of law must, of course, grant a remedy for wrongful arrest and confinement. When the framers of the U.S. Constitution met in Philadelphia in 1787, habeas corpus procedure was already confirmed by an English statute of 1679 and the Massachusetts Constitution of 1780. The new federal Constitution consequently declared 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.” Plainly, the Great Writ (as it came to be called) was familiar practice, not a creature of the Constitution but protected by it, and specifically authorized by the first statute enacted by Congress in 1789 to empower federal courts.

Although often invoked by prisoners jailed in state institutions who claim unconstitutional confinement, since 9/11 the writ has been sought repeatedly by detainees held at Guantánamo. To deal with the extraordinary spectacle of petitions emanating from an...

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About the Author

Joseph D. Becker, a founding partner of Becker, Glynn, Melamed and Muffly, a Manhattan law firm, is author of The American Law of Nations (Judis).