Holding the Body

History Lesson

Here’s a brief Latin class.   “Habeas” is the Latin verb for to hold or to have.  “Corpus” is pretty obvious, because it’s the “root word” for the English word, corpse.  It simply means a body, but not necessarily dead.   Put them together and it means “to hold (have) a body”.  In old English law, where our American system has its roots, asking for a “Writ of Habeas Corpus” was asking the government (the King) to explain why he is “holding a body”, simply, why is someone in custody.

It is an old English right, established even before the foundation of England’s “liberties” with the Magna Carta of 1215.   And it is engrained in the highest American law, the United States Constitution.   In Article I, Section 9, Clause 2: “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.”

Everyone in America, under the Constitution, has the right to ask why they are in custody.   Not only do they have the right to ask for the “writ”. The government is required to give a legally acceptable answer, in front of a Court of Law.  We know this, because on every cop show on TV we hear that a suspect can only be held for so long, 48 to 72 hours, without being charged.  The “Charge” is, the writ of Habeas Corpus.  That is the government’s answer for “holding the body”.   It is made in front of a court, and the court needs to accept that there is “probable cause” that the person in custody has indeed committed a crime, and can be held.

Who’s an American

“Everyone” is a “term of art” in the law.   Who is an American?  In “normal” times, everyone who is physically “in” the United States is granted legal rights.  That includes “born” US citizens, naturalized US Citizens, legal immigrants; green card, long and short term visa holders. And even migrants who are in the US without permission have rights.   (That phrase leads to the ethnic insult, someone who is “Without Papers”, a “WOP”).  

In American history there were two groups who did NOT originally have rights.   First, and most famously, were the enslaved people brought into America.  There was a difference between those who were enslaved, owned by someone forever, and those who were indentured, or contracted to work for a term of time.  The indentured still had some rights.  

The enslaved had none.  And secondly, there were the Native Americans, who were treated as “foreigners” (on their own land).   As they were born to a different “nationality”, a Native American tribe, they weren’t considered American.  Everyone else at least had basic rights.

 Among those rights are criminal rights, including the writ of habeas corpus, and right to a jury trial, and the other rights granted under the Constitution, Bill of Rights, and Amendments. The Courts have even recognized those rights that weren’t criminal, including the famous five freedoms of the First Amendment:  religion, speech, press, assembly, and petition the government for redress of grievances.  The ONLY times all of those Constitutional rights can be “suspended” is during War, Rebellion, Invasion or when public safety is threatened.

This was put to the test in the early years of the American Constitutional experiment.  

John Adams

In the late 1790’s, there was a lot of pressure on President, John Adams.    The new United States was still tied to Great Britain economically, but allied to France politically.   France was in the middle of their Revolution, using much of the same rhetoric of the American rebellion.  Adams and his Federalist Party were more aligned with Britain (New England was a center of trade). The opposition party of Thomas Jefferson, “the Democratic-Republicans” were, like their leader, more aligned with France.

Adams and his Federalists passed the Insurrection Act in 1792, and the Alien and Sedition Acts in 1798.   These allowed the Federal government to intervene, both in domestic insurrection, and against criticism from “foreigners” living in the United States. The Alien Act allowed the President to determine that an alien was acting against the US interest and could be jailed or deported, and the Sedition Act allowed the President to punish Americans criticizing the Government.  

The Sedition Act expired in 1801, and was never tested in Court.  The Alien Act was used to control enemy aliens during America’s declared wars, the War of 1812, and World Wars I and II.   In fact, it served as the foundation for one of the United States’ most ignominious actions.  During World War II, Americans of Japanese descent, even “natural born” American citizens, were rounded up and  “relocated” to internment camps guarded by the Army.

Civil War

And the Insurrection Act was invoked by President Lincoln during the Civil War.   He suspended writ of habeas corpus both in the areas of rebellion, and in cases where the safety of the Union war effort was involved.   This included imprisoning politicians who were opposed to the Civil War, One of those was former Ohio Congressman Clement Vallandigham.  

The Congressman led a pro-slavery, anti-war group called the “Copperheads”, and gave a speech  in Mt. Vernon, Ohio in 1863, far from the battlefields.   The military arrested him, and tried him by military court martial.  Vallandigham’s lawyer demanded a writ of habeas corpus, to bring the trial into civilian court. But the Supreme Court ruled that the court martial was an exercise of the President’s war powers (Ex parte Vallandigham, 68 U.S. (1 Wall.) 243).  

Vallandigham ended up exiled in Canada, where he ran for Ohio Governor “in-absentia” that fall and failed.   He did manage to get almost 40% of the votes.  Even then, Ohio was divided.

Declaring Emergencies

The key to these “extra” Presidential powers is an emergency; a war, or an insurrection.   That’s why President Trump has “declared” that the border crisis, the fentanyl crisis, and trade imbalance crises are all “emergencies”.  That claim might grant the President authority to act under Presidential decree (executive order) rather than wait on Congress to actually debate and pass laws.  And, President Trump now claims that it gives him the power to deport folks out of the country: without hearing, without legal representation, without even the writ of habeas corpus.

It’s an emergency, an “invasion” of Venezuelan gang members.  So he invokes the 1798 Alien Act.   It’s an emergency, a glut of Chinese created fentanyl coming in.  So he puts prohibitive tariffs on China, Mexico, and Canada.  It’s an emergency; folks are marching in the streets, parading and speaking out against the other emergencies.  Will the President invoke the Insurrection Act, and send the US military to enforce his will?  We will know soon enough, as the Trump Administration continues to refuse to explain their actions to the world.

Why are they holding those bodies, even those bodies of innocent people?   Key your “eyes on the prize”.  If the President doesn’t have to allow for the writ of habeas corpus, he can do almost anything, without check or balance.  

It’s the signal:  our Democracy is at risk.