At the Reference Desk: Habeas Corpus

Questioner: Do you have the legal form "Writ of Habeas Corpus?"
Answerer: What is the form used for?
Questioner: I don't know.

Writ of Habeas Corpus? Isn't that a suicide letter? Or maybe a new mystery genre. Obviously, I had no idea what it was, but the Questioner was not critical of my ignorance, thank goodness. I know I've heard the term before, maybe in high school government class, but I couldn't remember the historical context. The questioner and I checked several legal form books; not there. I wanted to ask him why he was interested in this particular legal form, especially since he didn't know what it's used for, but I have learned it's better not to ask patrons for too much information, especially when it pertains to the Law. When it's Law-related, I often hear more than I really want to about a person's arrest history or the scandalous behavior of their estranged spouse.

After checking some Internet sites, I discovered that a Writ of Habeas Corpus is not something that can be done with a simple form. A Writ of Habeas Corpus is a process that it is complicated, involves extensive legal knowledge, and was far beyond the scope of a public library. Or a public librarian. So I did what I always do when a legal issue appears to involve more than using an index and a copy machine. I referred him to the Superior Court Law Library. Soon the Questioner was on his way, happy with the small bit of information I gave him and looking forward to learning more.

Law librarians are wonderful. They don't give legal advice, but they are very knowledgeable about which forms to use and how to file them. Public librarians are often wary of dispensing three kinds of information: medical, legal and tax-related. We like to give advice on other topics, such as the best book to read to lift your spirits, or the best Internet site for martini recipes, but anything that smells of the law makes us suddenly hard of hearing. "You need what?" we ask nervously. "The penalty for violating the concealed weapon law? Uh, the state statutes are right here." Then we scurry away, hoping we don't have to explain what a bench warrant is. Our fear is well founded; librarians can be sued for providing misinformation the same as attorneys and physicians, and some have. Because of this, most public libraries have policies regarding legal, medical and tax information. We lead them to the information source, show them how to use it if needed, and then leave them to interpret it as they see fit.

So, in effect, I passed the buck. But even though I had referred my Questioner to the appropriate agency, I couldn't get that Writ of Habeas Corpus out of my mind. What the heck was it? And why would a person want one? I decided to research it for my own self. One of the perks of the job. And my research revealed some very interesting facts about this legal process, including recent developments regarding our civil liberties. My advance apologies to any legal whizzes who detect any mistakes in the following explanation. Just don't sue me, okay?

It turns out that a Writ of Habeas Corpus is a very old legal process. It was mentioned as long ago as the fourteenth century but was an official English law in 1679. A writ used to refer to a letter, or a name for an action in the courts. Historically, there were different writs for different things: to recover property, seek damages, etc. These kinds of writs have mostly been replaced by civil actions. But a writ was also used to question whether a defendant has been given due process. In that respect, a writ means to issue an order, like a summons to appear in court, in order to examine the events surrounding a person's imprisonment. In modern America, a writ works as an order from a higher court to a lower court, or as an order to government official. Its sole purpose is to release an incarcerated person from unlawful imprisonment, and, because of that, it is known as the Great Writ of Liberty.

The only function of the Writ of Habeas Corpus is to test whether a person has received due process; it is not a question of guilt or innocence. While close in function, an appeal differs from the Writ in that an appeal is a request to a higher court to review and change the decision of a lower court. The benefit of filing a writ is to question a point that's not allowed on appeal, to question something that's already been appealed, or to bring an urgent matter to the court's attention. Unlike an appeal, which can only be filed once, writs can be filed multiple times and are often used as a last resort, when the prisoner has no other options. The process works like this:

The prisoner files to be released from unlawful imprisonment;

The judge issues the writ, orders the prisoner into court, and investigates the cause of the imprisonment;

If the court discovers that any constitutional rights were violated, the prisoner is set free.

The early colonists had high regard for the Writ of Habeas Corpus, and the British refusal to issue it was a major grievance before the Revolutionary War. In fact, the writers included it in the Constitution: "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. The most famous instance of the writ being suspended is during the Civil War. President Lincoln ordered the suspension in 1861 to suppress a Southern underground terrorist group, the members of which had been arrested for destroying railroad bridges. This was controversial at the time because Lincoln didn't wait for Congress to authorize his decision. This led to a legal showdown between Chief Justice Roger Taney and the military. Eventually Congress upheld the president's suspension, and the prisoners remained in jail.

There have been many other instances were civil liberties were suspended during wartime, but the internment of Japanese-Americans and other immigrants during World War II is one of the most objectionable. Even though President Roosevelt's order was challenged in the courts, it was never ruled as unconstitutional. The Supreme Court justices supported the lack of action, saying "Whatever views we may entertain regarding the loyalty to this country of the citizens of Japanese ancestry, we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population."

But these violations of civil rights only happen during war, right? Wrong. The USA Patriot Act gives federal agencies more power than ever before in order to protect our national security. In doing so, there is no doubt that many of our civil rights have been or will be violated. Some explain that this is necessary for our security; others argue that this increased power comes at too high a cost. Some of the additional investigative methods that are now allowed through the Patriot Act are:

Delaying notification of the execution of a warrant

Seizure of voice-mail messages before obtaining a warrant

Authority to intercept wire, oral and electronic communication relating to terrorism

Mandatory detention of suspected terrorists

Foreign student monitoring program.

This is just a small part of the Patriot Act. The part that made me sit up and take notice was the mandatory detention of suspected terrorists. Authorities have leave to detain anyone suspected of terrorist activities up to seven days without arresting them, and then up to six months before holding a trial. If they are deemed a threat to security, they can be detained indefinitely. Many Muslim and Arab citizens and noncitizens are under surveillance, compromising their civil liberties and causing concern that the Writ of Habeas Corpus has been suspended.

You may have read that librarians across the country have been very outspoken against the Patriot Act, since it allows law enforcement officials easy access to library records. U.S. Attorney General John Ashcroft has even described librarians as "hysterics." The right to privacy has always been near and dear to those who work in libraries for good reason: no one should be judged by what they read. If I choose to learn about money laundering, or how to make a bomb, or radical Islam, that does not mean that I am going participate in these activities myself. Giving the government the right to examine what I read and then make judgments as to my character is both intrusive and offensive. Libraries should be places where the free exchange of ideas can take place, not places of oppression and alienation.

James Monroe wrote, "Of the liberty of conscience in matters of religious faith, of speech and of the press; of the trial by jury of the vicinage in civil and criminal cases; of the benefit of the writ of habeas corpus; of the right to keep and bear arms.... If these rights are well defined, and secured against encroachment, it is impossible that government should ever degenerate into tyranny." Our history shows it is true enough that liberty takes a beating in wartime, but it would be a shame if the war on terrorism made prisoners of us all.