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In common law countries, habeas corpus (/ˈheɪbiəs ˈkɔɹpəs/) (Latin: [We command] that you have the body) ^[1] is the name of a legal action, or writ, through which a person can seek relief from unlawful detention of themselves or another person. The writ of habeas corpus has historically been an important instrument for the safeguarding of individual freedom against arbitrary state action.

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 the custodian (such as a prison official) demanding that a prisoner be brought before the court, together with proof of authority, so that the court can determine whether that custodian has lawful authority to hold that person, or, if not, the person should be released from custody. The prisoner, or some other person on his behalf (for example, where the prisoner is being held incommunicado), may petition the court or an individual judge for a writ of habeas corpus.

The right of habeas corpus—or rather, the right to petition for the writ—has long been celebrated as the most efficient safeguard of the liberty of the subject. Albert Venn Dicey wrote that the Habeas Corpus Acts "declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty." In most countries, however, the procedure of habeas corpus can be suspended in time of national emergency. In most civil law jurisdictions, comparable provisions exist, but they may not be called "habeas corpus."^[2]

The writ of habeas corpus is one of what are called the "extraordinary", "common law", or "prerogative writs", which were historically issued by the courts in the name of the monarch to control inferior courts and public authorities within the kingdom. The most common of the other such prerogative writs are quo warranto, prohibito, mandamus, procedendo, and certiorari.^[3] When the United States declared independence and became a constitutional republic in which the people are the sovereign, any person, in the name of the people, acquired authority to initiate such writs.

The due process for such petitions is not simply civil or criminal, because they incorporate the presumption of nonauthority,^[4] so that the official who is the respondent has the burden to prove his authority to do or not do something, failing which the court has no discretion but to decide for the petitioner, who may be any person, not just an interested party. In this they differ from a motion in a civil process in which the burden of proof is on the movant, and in which there can be an issue of standing.

Derivation and form

The writ of habeas corpus is often referred to in full in legal texts as habeas corpus ad subjiciendum or more rarely ad subjiciendum et recipiendum. The name derives from the operative words of the writ in Medieval Latin:

''Praecipimus tibi quod corpus A.B. in prisona nostra sub custodia tua detentum, ut dicitur, una cum die et causa captionis et detentionis suae, quocumque nomine praedictus A.B. censeatur in eadem, habeas coram nobis ... ad subjiciendum et recipiendum ea quae curia nostra de eo adtunc et ibidem ordinare contigerit in hac parte. Et hoc nullatenus omittatis periculo incumbente. Et habeas ibi hoc breve.' We command you, that the body of A.B. in Our prison under your custody detained, as it is said, together with the day and cause of his taking and detention, by whatsoever name the said A.B. may be known therein, you have at our Court ... to undergo and to receive that which our Court shall then and there consider and order in that behalf. Hereof in no way fail, at your peril. And have there this writ.

The word habeas in the writ is not in the indicative mood ("You have ..."), but in the subjunctive (specifically the volitive subjunctive): "We command that you have ...". The full name of the writ is often used to distinguish it from similar ancient writs:

• Habeas corpus ad deliberandum et recipiendum, a writ for bringing an accused from a different county into a court in the place where a crime had been committed for purposes of trial, or more literally to return holding the body for purposes of “deliberation and receipt” of a decision;
• Habeas corpus ad faciendum et recipiendum, also called habeas corpus cum causa, a writ of a superior court to a custodian to return with the body being held by the order of a lower court "with reasons", for the purpose of “receiving” the decision of the superior court and of “doing” what it ordered;
• Habeas corpus ad prosequendum, a writ ordering return with a prisoner for the purpose of “prosecuting” him before the court;
• Habeas corpus ad respondendum, a writ ordering return in order to allowing the prisoner to “answer” to new proceedings before the court;
• Habeas corpus ad satisfaciendum, a writ ordering return with the body of a prisoner for “satisfaction” or execution of a judgment of the issuing court; and
• Habeas corpus ad testificandum, a writ ordering return with the body of a prisoner for the purposes of “testifying”.

That the basic form of the writs of habeas corpus, now written in English, has changed little over the centuries can be seen from the following examples:

VICTORIA, by the Grace of God, of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith, to J.K., Keeper of our Gaol of Jersey, in the Island of Jersey, and to J.C. Viscount of said Island, Greeting. We command you that you have the body of C.C.W. detained in our prison under your custody, as it is said, together with the day and cause of his being taken and detained, by whatsoever name he may be called or known, in our Court before us, at Westminster, on the 18th day of January next, to undergo and receive all and singular such matters and things which our said Court shall then and there consider of him in this behalf; and have there then this Writ. Witness Thomas, Lord DENMAN, at Westminster, the 23rd day of December in the 8th year of Our reign.

The United States of America, Second Judicial Circuit, Southern District of New York, ss.: We command you that the body of Charles L. Craig, in your custody detained, as it is said, together with the day and cause of his caption and detention, you safely have before Honorable Martin T. Manton, United States Circuit Judge for the Second Judicial Circuit, within the circuit and district aforesaid, to do and receive all and singular those things which the said judge shall then and there consider of him in this behalf; and have you then and there this writ. Witness the Honorable Martin T. Manton, United States Circuit Judge for the Second Judicial Circuit, this 24th day of February, 1921, and in the 145th year of the Independence of the United States of America.

History of habeas corpus in England

Blackstone cites the first recorded usage of habeas corpus ad subjiciendum in 1305, during the reign of King Edward I. However, other writs were issued with the same effect as early as the reign of Henry II in the 12th century. Blackstone explained the basis of the writ, saying:

The King is at all times entitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted.

The procedure for the issuing of writs of habeas corpus was first codified by the Habeas Corpus Act 1679, following judicial rulings which had restricted the effectiveness of the writ. A previous act had been passed in 1640 to overturn a ruling that the command of the King was a sufficient answer to a petition of habeas corpus.

Then, as now, the writ of habeas corpus was issued by a superior court in the name of the Sovereign, and commanded the addressee (a lower court, sheriff, or private subject) to produce the prisoner before the Royal courts of law. A habeas corpus petition could be made by the prisoner himself or by a third party on his behalf and, as a result of the Habeas Corpus Acts, could be made regardless of whether the court was in session, by presenting the petition to a judge.

Since the 18th century the writ has also been used in cases of unlawful detention by private individuals, most famously in Somersett's Case (1771), where the black slave Somersett was ordered to be freed, the famous words being quoted (or misquoted, see Somersett's Case):

The air of England has long been too pure for a slave, and every man is free who breathes it.

The privilege of habeas corpus has been suspended or restricted several times during English history, most recently during the 18th and 19th centuries. Although internment without trial has been authorised by statute since that time, for example during the two World Wars and the Troubles in Northern Ireland, the procedure of habeas corpus has in modern times always technically remained available to such internees. However, as habeas corpus is only a procedural device to examine the lawfulness of a prisoner's detention, so long as the detention was in accordance with an Act of Parliament, the petition for habeas corpus would be unsuccessful. Since the passage of the Human Rights Act 1998, the courts have been able to declare an Act of Parliament to be incompatible with the European Convention on Human Rights. However, such a declaration of incompatibility has no immediate legal effect until it is acted upon by the government.

The wording of the writ of habeas corpus implies that the prisoner is brought to the court in order for the legality of the imprisonment to be examined. However, rather than issuing the writ immediately and waiting for the return of the writ by the custodian, modern practice in England is for the original application to be followed by a hearing with both parties present to decide the legality of the detention, without any writ being issued. If the detention is held to be unlawful, the prisoner can usually then be released or bailed by order of the court without having to be produced before it. It is also possible for individuals held by the state to petition for judicial review, and individuals held by non-state entities to apply for an injunction.

United States

Main article: Habeas corpus in the United States

The United States Constitution specifically included the English common law procedure in the Suspension Clause, located in Article One, Section 9. It states:

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.

The writ of habeas corpus ad subjiciendum is a civil, not criminal, ex parte proceeding in which a court inquires as to the legitimacy of a prisoner's custody. Typically, habeas corpus proceedings are to determine whether the court which imposed sentence on the defendant had jurisdiction and authority to do so, or whether the defendant's sentence has expired. Habeas corpus is also used as a legal avenue to challenge other types of custody such as pretrial detention or detention by the United States Bureau of Immigration and Customs Enforcement pursuant to a deportation proceeding.

Scope

The writ of Habeas Corpus was originally understood to apply only to those held in custody by officials of the Executive Branch of the federal government and not to those held by state governments, which independently afford habeas corpus pursuant to their respective constitutions and laws. The United States Congress granted all federal courts jurisdiction under to issue writs of habeas corpus to release prisoners held by any government entity within the country from custody in the following circumstances:

*Is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or

*Is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree of a court or judge of the United States; or

*Is in custody in violation of the Constitution or laws or treaties of the United States; or

*Being a citizen of a foreign state and domiciled therein is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, order or sanction of any foreign state, or under color thereof, the validity and effect of which depend upon the law of nations; or

*It is necessary to bring said persons into court to testify or for trial.

In 1950s and 1960s, decisions by the Warren Supreme Court greatly expanded the use and scope of the federal writ, and the primary use of the write of Habeas corpus in modern times has been to allow federal courts to review death penalty proceedings. However, in the last thirty years, decisions by the Burger and Rehnquist Courts have somewhat narrowed the writ.

The Antiterrorism and Effective Death Penalty Act of 1996 further limited the use of the federal writ by imposing a one-year statute of limitations and dramatically increasing the federal judiciary's deference to decisions previously made in state court proceedings either on appeal or in a state court habeas corpus action.

Suspension during the Civil War and Reconstruction

On April 27, 1861, habeas corpus was suspended by President Lincoln in Maryland and parts of midwestern states, including southern Indiana during the American Civil War. Lincoln did so in response to riots, local militia actions, and the threat that the border slave state of Maryland would secede from the Union, leaving the nation's capital, Washington, D.C., surrounded by hostile territory. Lincoln was also motivated by requests by generals to set up military courts to rein in "Copperheads" or Peace Democrats, and those in the Union who supported the Confederate cause. His action was challenged in court and overturned by the U.S. Circuit Court in Maryland (led by Supreme Court Chief Justice Roger B. Taney) in Ex Parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861). Lincoln ignored Taney's order. In the Confederacy, Jefferson Davis also suspended habeas corpus and imposed martial law. This was in part to maintain order and spur industrial growth in the South to compensate for the economic loss inflicted by its secession.

In 1864, Lambdin P. Milligan and four others were accused of planning to steal Union weapons and invade Union prisoner-of-war camps and were sentenced to hang by a military court. However, their execution was not set until May 1865, so they were able to argue the case after the Civil War. In Ex Parte Milligan 71 U.S. 2 (1866), the Supreme Court of the United States decided that it was unconstitutional for the President to try to convict citizens before military tribunals when civil courts were functioning. The trial of civilians by military tribunals is allowed only if civilian courts are closed. This was one of the key Supreme Court Cases of the American Civil War that dealt with wartime civil liberties and martial law.

In the early 1870s, President Grant suspended habeas corpus in nine counties in South Carolina, as part of federal civil rights action against the Ku Klux Klan under the 1870 Force Act and 1871 Ku Klux Klan Act.

Suspension in the United States in 1990s and 2000s

AEDPA

In 1996, following the Oklahoma City bombing, Congress passed (91-8-1 in the Senate, 293-133-7 in the House) and President Clinton signed into law the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The AEDPA was to "deter terrorism, provide justice for victims, provide for an effective death penalty, and for other purposes."

The AEDPA contained the first limitations on habeas corpus since the Civil War. For the first time, its Section 101 set a statute of limitations of one year following conviction for prisoners to seek the writ. It limits the power of federal judges to grant relief unless the state court's adjudication of the claim resulted in a decision that was (1) contrary to, or involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. It absolutely barred second or successive petitions. Petitioners who had already filed a federal habeas petition were required to first secure authorization from the appropriate United States Court of Appeals.

War on Terror

The November 13, 2001, Presidential Military Order gave the President of the United States the power to detain a non-citizen suspected of connection to terrorists or terrorism as an unlawful combatant. As such, it was asserted that a person could be held indefinitely without charges being filed against him or her, without a court hearing, and without entitlement to a legal consultant. Many legal and constitutional scholars contended that these provisions were in direct opposition to habeas corpus and the United States Bill of Rights.

In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Supreme Court reaffirmed the right of United States citizens to seek writs of habeas corpus even when declared enemy combatants.

In Hamdan v. Rumsfeld, 548 U.S. ___ (2006), Salim Ahmed Hamdan petitioned for a writ of habeas corpus, challenging that the military commissions set up by the Bush administration to try detainees at Guantánamo Bay “violate both the Uniform Code of Military Justice and the four Geneva Conventions.” In a 5-3 ruling, the Supreme Court rejected Congress's attempts to strip the courts of jurisdiction over habeas corpus appeals by detainees at Guantánamo Bay. Congress had previously passed the Department of Defense Appropriations Act, 2006 which stated in Section 1005(e), “Procedures for Status Review of Detainees Outside the United States”:

“(1) Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantánamo Bay, Cuba.

“(2) The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on any claims with respect to an alien under this paragraph shall be limited to the consideration of whether the status determination … was consistent with the standards and procedures specified by the Secretary of Defense for Combatant Status Review Tribunals (including the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence and allowing a rebuttable presumption in favor of the Government's evidence), and to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.?

On 29 September, 2006, the House and Senate approved the Military Commissions Act of 2006 (MCA), a bill that would suspend habeas corpus for any alien determined to be an “unlawful enemy combatant" engaged in hostilities or having supported hostilities against the United States”^[5][6] by a vote of 65–34. (This was the result on the bill to approve the military trials for detainees; an amendment to remove the suspension of habeas corpus failed 48–51.^[7]) President Bush signed the Military Commissions Act of 2006 into law on October 17, 2006.

With the MCA's passage, the law altered the language from “alien detained … at Guantánamo Bay”:

“Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” §1005(e)(1), 119 Stat. 2742.

On 20 February, 2007, the U.S. Court of Appeals for the District of Columbia Circuit upheld this provision of the MCA in a 2-1 decision of the Case Boumediene v. Bush. The Supreme Court let the Circuit Court's decision stand by refusing to hear the detainees' appeal. On June 29, 2007, the U.S. Supreme Court reversed its April 2007 decision and agreed to hear the appeals of Guantanamo detainees who are seeking habeas corpus review of their detentions.[1]

Under the MCA, the law restricts habeas appeals for only those aliens detained as "enemy combatants," or awaiting such determination. Left unchanged is the provision that, after such determination is made, it is subject to appeal in U.S. Court, including a review of whether the evidence warrants the determination. If the status is upheld, then their imprisonment is deemed lawful; if not, then the government can change the prisoner's status to something else, at which point the habeas restrictions no longer apply.

There is, however, no legal time limit which would force the government to provide a Combatant Status Review Tribunal (CSRT) hearing. Prisoners are legally prohibited from petitioning any court for any reason before a CSRT hearing takes place.

On January 17, 2007, Attorney General Gonzales asserted in Senate testimony that while habeas corpus is "one of our most cherished rights," the United States Constitution does not expressly guarantee habeas rights to United States residents or citizens.

As such, the law could be extended to U.S. citizens and held if left unchecked.[2]

As Robert Parry writes in the Baltimore Chronicle & Sentinel:

Applying Gonzales’s reasoning, one could argue that the First Amendment doesn’t explicitly say Americans have the right to worship as they choose, speak as they wish or assemble peacefully. Ironically, Gonzales may be wrong in another way about the lack of specificity in the Constitution’s granting of habeas corpus rights. Many of the legal features attributed to habeas corpus are delineated in a positive way in the Sixth Amendment...[8]

To date, there have been a number of confirmed cases in which non-American civilians have been incorrectly classified as enemy combatants. [3]

On June 7, 2007, the Habeas Corpus Restoration Act of 2007 was approved by the Senate Judiciary Committee with an 11-8 vote split along party lines, with all but one Republican voting against it.^[9] Although the Act would restore statutory habeas corpus to enemy combatants, it would not overturn the provisions of the AEDPA which set a statute of limitations on habeas corpus claims from ordinary civilian federal and state prisoners.

On June 11, 2007, a federal appeals court ruled that Ali Saleh Kahlah al-Marri, a legal resident of the United States, could not be detained indefinitely without charge. In a two-to-one ruling by the Fourth Circuit Court of Appeals, the Court held the President of the United States lacks legal authority to detain al-Maari without charge; all three judges ruled that al-Maari is entitled to traditional habeas corpus protections which give him the right to challenge his detainment in a U.S. Court.

Australia

The writ of habeas corpus as a procedural remedy is part of Australia's English law inheritance. In October 2005, the Australian Federal Government under the leadership of Prime Minister John Howard, proposed the Federal Anti-Terrorism Act 2005. Before the bills are introduced for debate in the Australian Parliament, the draft has been forwarded to the States and Territories for approval.

The legislation was being debated in both the federal and state parliaments, and some legal experts have stated that the act is unconstitutional because it abolishes habeas corpus, due process, and the presumption of innocence. Some Solicitors-General consider the Act also violates the separation of powers. Amendments made that were proposed by some State Premiers and Liberal Party backbenchers include a greater right of appeal of a detained person, and the case to be considered on the basis of merit, rather than points of law.

The act allows the executive branch of government rather than the judiciary to imprison people and to imprison people indefinitely without charge or trial. The act also makes it an offence to even talk about somebody being imprisoned. One of the more controversial aspects of the legislation is the requirement that a parent, if informed of their child's detention, may not inform any further person including the other parent. This clause applies also to detention of adults.

Also of controversy in Australia is this law's pertinence to the detention of Australian nationals held in other countries under terrorism charges. All nations under international law may claim jurisdiction over their citizens for trial within their country under its laws.

Republic of Ireland

In the Republic of Ireland the principle of habeas corpus is guaranteed by Article 40, Section 4 of the Irish constitution. This guarantees each individual "personal liberty" and outlines a detailed habeas corpus procedure, without actually mentioning the Latin term. However it also provides that habeas corpus is not binding on the Defence Forces during a state of war or armed rebellion.

The state inherited habeas corpus as part of the common law when it seceded from the United Kingdom in 1922, but the principle was also guaranteed by Article 6 of the Constitution of the Irish Free State in force from 1922 to 1937. A similar provision was included when the current constitution was adopted in 1937. Since that date habeas corpus has been restricted by two constitutional amendments, the Second Amendment in 1941 and the Sixteenth Amendment in 1996.

Before the Second Amendment an individual detained had the constitutional right to apply to any High Court judge for a writ of habeas corpus and to as many High Court judges as they wished. Since the Second Amendment a prisoner has a right to apply to only one judge, and, once a writ has been issued, the President of the High Court has authority to choose the judge or panel of three judges who will decide the case. The amendment also added a requirement that, where the High Court believed someone's detention to be invalid due to the unconstitutionality of a law, it must refer the matter to the Irish Supreme Court and may release the individual on bail only in the interim.

In 1965 the Supreme Court ruled in the O'Callaghan case that the provisions of the constitution meant that an individual charged with a crime could be refused bail only if they were likely to flee or to interfere with witnesses or evidence. Since the Sixteenth Amendment, it has been possible for a court to take into account whether a person has committed serious crimes while on bail in the past.

Malaysia

In Malaysia, the right of habeas corpus is enshrined in the Federal Constitution, though the name habeas corpus is not used. Article 5(2) provides that "Where complaint is made to a High Court or any judge thereof that a person is being unlawfully detained the court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the court and release him."

As there are several statutes, for example, the Internal Security Act 1960, that still permit detention without trial, the procedure is usually effective in such cases only if it can be showed that there was a procedural error in the way that the detention was ordered.

New Zealand

While habeas corpus is generally used on the government, it can also be used on individuals. In 2006, a child was allegedly kidnapped by his mother's father after a custody dispute. The father filed habeas corpus against the mother, the grandfather, the grandmother, the great grandmother, and another person alleged to have assisted in the kidnap of the child. The mother did not present the child to the court and was imprisoned for contempt of court. She was released when the child's grandfather came forward with him in late January 2007. [4] [5]

Portugal

The Constitution of Portugal states that Habeas corpus shall be available to counter the misuse of power in the form of illegal arrest, imprisonment or detention. According to the Portuguese Penal Process Code, the application for it shall be made to the judge conducting the preliminary investigations or to the Portuguese Supreme Court of Justice.

The reasons that may justify an habeas corpus are: exceeded the period to deliver the detainee to judicial power; exceeded the detention period stated by law or judicial decision; detention outside the legally allowed places; detention ordered by an incompetent authority; and detention motivated for fact for which the law does not allow detention.

Spain

The Spanish Constitution states that A habeas corpus procedure shall be provided for by law in order to ensure the immediate handing over to the judicial authorities of any person illegally arrested. The law which regulates the procedure is the Law of Habeas Corpus of 24 May 1984 which provides that a person imprisoned may, on his own or through a third person, allege his Habeas Corpus right and request to appear before a judge. The request must specify the grounds on which the detention is considered to be unlawful which can be, for example, that the imprisoner does not have the legal authority, or that the prisoner's constitutional rights were violated or that he was subject to mistreatment, etc. The judge may then request additional information if needed and may issue an Habeas Corpus order at which point the holding authority has 24 hours to bring the prisoner before the judge.

Philippines

On August 25, 2007, Chief Justice Reynato Puno announced (at the College of Law alumni of Silliman University in Dumaguete City) that the Supreme Court of the Philippines was drafting the writ of Habeas Data. By invoking the truth, the new remedy will not only compel military and government agents to release information about the desaparecidos but require access to military and police files. Reynato Puno announced earlier on the draft of the writ of amparo -- Spanish for protection -- which will prevent military officials in judicial proceedings to simply issue denials on cases of disappearances or extrajudicial executions, in Habeas corpus procedings. With the writ of Habeas corpus, the writ of Habeas Data and the writ of amparo will further help those looking for missing loved ones.^[10]

Further reading on historical background

• A.H. Carpenter. "Habeas Corpus in the Colonies." The American Historical Review. Vol. 8., No. 1 (October 1902), pages 18-27.
• Louis Fisher. 2003. Nazi Saboteurs on Trial: A Military Tribunal and American Law. University Press of Kansas. ISBN 0-7006-1238-6.
• Michael Dobbs. 2004. Saboteurs: The Nazi Raid on America. Vintage. ISBN 1-4000-3042-0.
• Peter Irons. 1999. A People's History of the Supreme Court. Viking. ISBN 0-670-87006-4. Political context for Ex Parte Milligan explained on Pp. 186-189.
• Helen A. Nutting. "The Most Wholesome Law--The Habeas Corpus Act of 1679." The American Historical Review. Vol. 65., No. 3 (April 1960), pages 527-543.
• Geoffrey R. Stone. 2004. Perilous Times, Free Speech in Wartime From the Sedition Act to the War on Terrorism. Norton. ISBN 0-393-05880-8.
• Cary Federman. 2006. The Body and the State: Habeas Corpus and American Jurisprudence. SUNY. ISBN 0-7914-6703-1.
• Eric M. Freedman. 2001. Habeas Corpus: Rethinking the Great Writ of Liberty (NYU Press) ISBN 0-8147-2717-4
• Robert Searles Walker, Ph.D., HABEAS CORPUS WRIT OF LIBERTY: English and American Origins and Development, BookSurge/Amazon 2006 LibCongControl#2006906118, ISBN 1-4196-4478-5.

See also

• Habeas Corpus Restoration Act of 2007
• Amnesty International page on Habeas Corpus Restoration Act of 2007
• Military Commissions Act of 2006
• Edward Hyde, 1st Earl of Clarendon
• Neminem captivabimus
• Arbitrary arrest and detention
• Asha Bandele "Habeas Corpus is a legal Entitlement", a poem in Absence in the Palms of My Hands & Other Poems. New York: Harlem River Press. 1996.
• Philippine Habeas Corpus Cases
• Habeas Corpus (play) The Play by the English author Alan Bennett
• List of legal Latin terms

External links

• Barristermagazine.com
• Inmatelaw.org
• LectLaw.com
• Petition for Habeas Corpus April 16, 1843 From Texas Tides
• This American Life: 331: Habeas Schmabeas 2007
• Find Habeas

References

1. ^ Jon R. Stone, Latin for the Illiterati: Exorcizing the Ghosts of a Dead Language, Routledge 1996, p.39
2. ^ [6]
3. ^ [7]
4. ^ [8]
5. ^ [9]
6. ^ Klein, Rick (29 September). Senate's passage of detainee bill gives Bush a win: Democrats say GOP capitulate. Boston Globe.
7. ^ [10]
8. ^ [11]
9. ^ [12]
10. ^ Inquirer.net, SC drafting writ of habeas data invoking right to truth

Criminal procedure refers to the legal process for adjudicating claims that someone has violated criminal law.

Differences between civil law and common law systems

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arrest warrant is a warrant issued by and on behalf of the state, which authorizes the arrest and detention of an individual.

Arrest warrants in the United States

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A search warrant is a written warrant issued by judge or magistrate which authorizes the police to conduct a search of a person or location for evidence of a criminal offense and seize the evidence.
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Knock-and-announce, in United States law of criminal procedure, is an ancient common-law principle which requires law enforcement officers to announce their
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An exigent circumstance, in the American law of criminal procedure, allows law enforcement to enter a structure without a warrant, or if they have a "knock and announce" warrant, without knocking and waiting for refusal under certain circumstances.
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Search and seizure is a legal procedure used in many common law countries whereby police or other authorities and their agents, who suspect that a crime has been committed, do a search of a person's property and confiscate any relevant evidence to the crime.
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An arrest is the action of the police, or person acting under the law, to take a person into custody, usually so that they may be forthcoming to answer
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The right to silence is a legal protection given to people undergoing police interrogation or trial. The law is recognized, explicitly or by convention, in many of the world's legal systems.
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In the United States, the Miranda warning is a warning given by police to criminal suspects in police custody, or in a custodial situation, before they are asked questions relating to the commission of a crime.
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Motto
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"E Pluribus Unum"   ("From Many, One"; Latin, traditional)
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In the American common law legal system, a grand jury is a type of jury which determines if there is enough evidence for a trial. Grand juries carry out this duty by examining evidence presented to them by a prosecutor and issuing indictments, or by investigating alleged crimes
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Criminal procedure refers to the legal process for adjudicating claims that someone has violated criminal law.

Differences between civil law and common law systems

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A statute of limitations is a statute in a common law legal system that sets forth the maximum period of time, after certain events, that legal proceedings based on those events may be initiated.
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Nolle prosequi is a Latin legal phrase meaning "to be unwilling to follow through" or, more simply, "unwilling to pursue." It is the term used in many common law criminal jurisdictions to describe a prosecutor's application to discontinue criminal charges before trial, or
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A bill of attainder (also known as an act or writ of attainder) is an act of legislature declaring a person or group of persons guilty of some crime, and punishing them, without benefit of a trial.
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ex post facto law (from the Latin for "from something done afterward") or retrospective law, is a law that retrospectively changes the legal consequences of acts committed or the legal status of facts and relationships that existed prior to the enactment of the law.
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Criminal jurisdiction is a term used in constitutional law and public law to describe the power of courts to hear a case brought by a state accusing a defendant of the commission of a crime.
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Extradition is the official process by which one nation or state requests and obtains from another nation or state the surrender of a suspected or convicted criminal. Between nation states, extradition is regulated by treaties.
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bail is some form of property deposited or pledged to a court in order to persuade it to release a suspect from jail, on the understanding that the suspect will return for trial or forfeit the bail (and be guilty of the crime of failure to appear).
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inquisitorial system is a legal system where the court or a part of the court is actively involved in determining the facts of the case, as opposed to an adversarial system where the role of the court is solely that of an impartial referee between parties.
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The adversarial system (or adversary system) of law is the system of law, generally adopted in common law countries, that relies on the skill of each advocate representing his or her party's positions and involves a neutral person, usually the judge, trying to
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Arraignment is a common law term for the formal reading of a criminal complaint, in the presence of the defendant, to inform him of the charges against him. In response to arraignment, the accused is expected to enter a plea.
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In the common law legal system, an indictment (IPA: /ɨnˈdaɪtmənt/) is a formal accusation of having committed a criminal offense.
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In legal terminology, a plea is simply an answer to a claim made by someone in a civil or criminal case under common law using the adversary system. Colloquially, a plea
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In the common law, the peremptory pleas (pleas in bar), are pleas that set out special reasons for which a trial cannot go ahead. They are the plea of autrefois convict, the plea of autrefois acquit, and the plea of pardon.
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Nolo contendere, in criminal trials, in some common law jurisdictions, is a plea where the defendant neither admits nor disputes a charge, serving as an alternative to a pleading of guilty or not guilty.
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A plea bargain (also plea agreement, plea deal or copping a plea) is an agreement in a criminal case in which a prosecutor and a defendant arrange to settle the case against the defendant.
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A presentence investigation report (PSI) is a legal term referring to the investigation into the history of person convicted of a crime before sentencing to determine if there are extenuating circumstances which should ameliorate the sentence or a history of criminal
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Criminal law
Part of the common law series
Elements of crimes
Actus reus  · Causation  · Concurrence
Mens rea  · Intention (general)
Intention in English law  · Recklessness
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