Habeas corpus is Latin for "you have the body." We hear "habeas corpus" used from time to time but few people actually know what it means. It's a legal concept dating to pre-revolutionary America which allows prisoners to challenge the legality of their confinement.

Habeas corpus is one of those rights that Americans are referencing when they brag to their foreign friends that we live in a "free country." You hear this swagger all the time: "our troops are fighting to keep us free." Or, "unlike Communist Cuba, the government can't treat us like animals." At some level, this is all true: the government cannot just pick you off the street and lock you away for no reason. Habeas Corpus is the remedy for this repressive tactic. A judge will review your detention and decide whether it's legal. Habeas Corpus, then, is the last resort against an authoritarian government.

Here's the bad news: in the fear surrounding Bush's war on terror, Habeas Corpus has been cut out of existence, at least for any number of people who are unfortunate enough to run afoul of the war on terror and the Bush administration's concept of an aider and abettor of terrorism. I will deal with the specifics of that in Part II. For now, let's take a look at the history of criminal law in this country and how the rights that protect us slowly creep away, sometimes right under our noses.

Criminal law: not just for criminals

There are many ways to criticize the U.S. Constitution, and scholars have written about its many omissions and limitations. But one thing that we can be sure of: this written document does protect us from certain governmental abuses. The Bill of Rights is Exhibit A in this analysis. The first 10 amendments to the Constitution contain the rights to free speech, freedom of religion and due process. But what people don't realize is that much of the Bill of Rights is devoted to the rights of people accused of criminal activity. That's right: the Bill of Rights is soft on crime, as a right wing politician might phrase it. These provisions require the government to use extreme care in prosecuting people because the loss of liberty (jail time) is too important. So the Seventh Amendment right to trial by jury, the Fifth Amendment right against self incrimination ("I'm taking the Fifth"), the Fourth Amendment right against unreasonable searches and seizures, the Eighth Amendment protection against excessive and unusual punishments, represent protections that would probably not survive a majority vote. But since they're in the Constitution, they'll always be there.

The reason why the Bill of Rights focuses on the rights of the accused is that the Constitutional framers were leery of unchecked monarchy but impressed by European protections against arbitrary detentions. Habeas Corpus goes back to the Thirteenth Century and, and once the United States was founded, Congress enacted a law that required the Federal courts to entertain Habeas petitions. The Constitution itself has a provision governing Habeas Corpus, stating that it cannot be suspended except "when in cases of rebellion or invasion the public safety may require it."

People who ask why criminal defendants are let free on "technicalities" are really attacking the notion that everyone has constitutional rights. Technicalities may seem petty, but the government has to follow the rules in convicting people and taking away their liberty. As the old saying goes, it is better to let 10 criminals go free than to wrongly imprison one person. That adage has informed American criminal law for centuries. As I will discuss below, that notion is now changing.

The Great Writ

The concept of Habeas Corpus was so important to our constitutional structure that judges called it the "Great Writ." A writ is a court order. In 1963, Justice William Brennan said of Habeas Corpus: "Although in form the Great Writ is simply a mode of procedure, its history is inextricably intertwined with the growth of fundamental rights of personal liberty. For its function has been to provide a prompt and efficacious remedy for whatever society deems to be intolerable restraints. Its root principle is that in a civilized society, government must always be accountable to the judiciary for a man's imprisonment: if the imprisonment cannot be shown to conform with the fundamental requirements of law, the individual is entitled to his immediate release."

The problem is that in American political culture, no one gets elected on a platform to protect the rights of the criminal defendants. They get elected by promising to lock them away and throw away the key. These politicians forget that the criminal process is fallable because humans are fallable. Some people really do get locked up in violation of the Constitution. Take a look at how many people are walking away from death row because they did not commit the crime that they were convicted of. Without DNA testing, you could fill a small graveyard with people who were buried alive.

When politicians take advantage of an ignorant public, the rights of criminal defendants are the first to go. So are the rights of people who were actually convicted of committing crimes, those who file Habeas petitions. In 1994, the Republicans took over the House of Representatives in Congress and got President Clinton to sign into law a measure which significantly restricted the rights of Habeas Corpus applicants. I do not see any mention of this law in the current debate over the recent changes in Habeas Corpus, but in retrospect this was a sign of things to come.

The 1996 Habeas law was actually quite disturbing. Prior to 1996, anyone convicted of a crime could petition the Federal courts under the Habeas Corpus law, claiming that the conviction violated the Constitution. This would happen in any number of ways, for example, the defendant was denied the right to counsel or was forced to confess against his will or there was something wrong with the trial leading to his conviction. The right to petition the Federal courts in a Habeas proceeding to challenge a conviction in State court (where most criminal defendants are tried) is unique in American law. Civil litigants (people who bring lawsuits) do not get a second bite at the apple if they lose in State court. Again, the idea that people cannot be imprisoned in violation of the Constitution permitted an exception against the rule that you cannot have a second chance in the court system. The fact that the Federal courts did, in fact, grant Habeas petitions on the basis that some State courts violated the Constitution only confirmed that it was not a bad idea to let criminals file a Habeas petition, even if most of them were denied on the basis that the State court in question did not violate the criminal's rights.

Politicians are always looking for ways to scapegoat their way to office. What happened in 1996 was disturbing to any fair-minded person who cared to notice. The new Habeas law that year said that Federal courts have to deny Habeas petitions unless they find that State courts violated clear constitutional mandates. So, the Federal court could actually find that someone was convicted in violation of the Constitution as understood by Federal judges who make their living interpreting and analyzing the Constitution each and every day. But the inmate stays in jail and cannot be released on a Habeas petition unless the Federal court finds that the conviction in State court was clearly in violation of the U.S. Constitution. The theory was that State courts need leeway to manage their own affairs and interpret the Constitution as they see fit, even if in retrospect the State courts were wrong in finding that someone's conviction was constitutional. State courts would get the benefit of the doubt in interpreting the Constitution and would only be on the losing end of a Habeas petition if they truly screwed up.

What this means is that we now have a two-tier system of constitutional law: different legal standards interpreting the same constitutional provisions in State and Federal court. The idea behind this ridiculous duality is that States have rights, too, and they can do without Federal courts constantly second-guessing them. That notion is OK as far as it goes, but it's an outrage that, at the end of the day, when the Habeas process is over, someone stays locked in jail even though experienced Federal judges found that the conviction was in violation of the constitutional right to a fair trial, so long as the State courts didn't really blow it. A mere constitutional violation of the right to fair trial is OK in State court.

The relevance of all this is that for the first time, we have a two constitutional standards in our system of justice. A Federal standard and a State standard. It boggles the mind to imagine how this could have happened, but it happened because the public hates criminals and President Clinton signed this into law figuring that he had to throw a bone to the Republicans who probably would vote down the Bill of Rights if it came up for a majority vote.

The current crisis

That all brings us to the current crisis. When the public is afraid, the rights of criminal defendants and people that we hate are the first to go. Habeas Corpus is the pinata that politicans will attack again and again because there is little public opposition to these repressive "solutions" to a national crisis and, as I said earlier, no politician ever got elected by promising to protect the rights of the criminally accused. What happened last week when President Bush revised the Habeas rules is monumental and sad, but it was foreseeable. More on that in Part II.