How Habeas Corpus Works

about that in this segway. That's a good one. Thanks. Is that the inauguration? Yes, it is, and they're expecting up to maybe four million people and worst case scenario they're talking is thirty thirty one degrees in raining. Everything will be icy and frozen, and there's gonna be old, you know, old people dying left and right, basically children exactly in peril. Yeah. Um, so it'll probably be the if that happens, the most the most death fraught inauguration

of all time. And there's been some pretty bloody ones. Really, I don't know. Okay, no, I'm not sure, but um I I personally am looking forward to the inauguration. Um because, as I understand it, Barack Obama. We've heard of him, president our next president. Yes, um, he is planning on restoring a part of the constitution that was shaved off a couple of years ago. Well, thing called habeas corpus. Yes, you've heard of this, I have. It is a Latin term.

And you said you took Latin in high school. No, No, I took German? Did you? You just continue to surprise and amaze me. I seemed like a Spanish guy, don't I. I would have definitely said Spanish. I wish I had taken Spanish it with I would be better now for it. But although you could definitely get yourself a desk job at how stuff works, Frankfurt? Is there how the works? Frank okay? I I mentioned to create one for you though,

if you lobbied for it enough. Uh So. Habeas corpus is Latin and it means, uh, you have the body. And essentially what it is is that it's a legal term that that it's kind of in order from a judge to a jailer saying you have the body, bring him to me so we can figure out if he's being in prison legally or not. Right. I've heard this term a lot I'm glad we're doing this because I never you know, it's one of those terms that everyone's probably heard of but doesn't know a lot about. So yeah,

there's a lot to it. Basically, what Habeas corpus does is we have a set of um guarantees in the Constitution and the Bill of Rights. Actually, if you really take a look at the Bill of Rights, you know the Framer's top ten great protections that that that list, Um they most of it has to do with being prosecuted, right, um, you know thinks so in taking all together, it's called due process. So you have a right to confront your accusers, you have a right to counsel, speedy trial. Speedy trial

is a big one. Fair trial, fair trial, huge. But the thing is is, you know, the these things can be guaranteed to you and I all day long, but they don't amount to anything if we don't have any action to take to ensure that they're actually being carried out, that the the these guarantees are are being delivered on. And that's what Habeas corpus is. It's it's that mechanism by which these constitutional protections are you know, guaranteed. That's

a great thanks a lot. Well that's it for today. Um, if that's all for me, folks, well, don't put this on me, because there's a lot to come. Do you want me to carry the corpus part? Okay? So, um, it's not this is not a new concept. It it actually dates back before the Framers, uh created the constitution and ratified in nine goes back to England. Correct, it's it's English common law in the in the seventeenth century.

If you're a Catholic like I was raised, you would be in grave danger of being picked up by the king'sman and throne in jail. Because this is a time when I believe it was King Henry, one of the kings. You know, there's just so many of them I can't keep them straight in Um, he when whoever was king, had had established the Church of England, and uh, you know that was the big rival to the Catholic Church. So he wanted a state sponsored, state run church and

didn't really want any competition. So if you're a Catholic, you were probably going to be in prison and heldon, not given a trial or anything like that nod process. So Parliament came up with this this protection and actually it made date back further than that. Some people say that it's it's kind of implied by the Magna Carta, which was twelve fifteen at running med It's a long

long time ago, it is, um. But it it actually became codified as habeas corpus in in the seventeenth century England, and then the framers picked it up and it's in the constitution. It's a huge right, you know. UM. And in American practice, if you have habeas corpus, the process goes like this, you're tried or you're jailed. Even you can say you're jailed. Most of the time you've already

been tried and now you've been convicted and incarcerated. And a writ of habeas corpus can actually be a legal strategy where after all of your appeals run out, you can use it. You can issue a petition of habeas corpus and you're saying, hey, judge, you know I don't think at my trial I was given a fair trial. Say you know my counselor was inadequate, Um, he was

drunk all the time. That kind of thing, or the prosecution like hid you know, important evidence that would have exonerated you you can, you can issue this in a petition of habeas corpus. Judge considers that if the judge decides that you know, it raises enough questions about the legality of your imprisonment, you will well, no, it's not another trial, it's a hearing and actually no habeas corpus. It's not a rehash of your actual trial. So it's not an appeal at all, not really, but it's it

kind of falls in step with the appeal process. It's so what happened as far as you know, you murdered somebody or that's what you're accused of. The judge and the habeas corpus hearing, it doesn't care about that. What they care about is evidence that shows that you're you know, your defense attorney was drunk, that kind of thing. Sure, I get it. And the So these things also tend to as a legal strategy, tended to come in a flurry.

Would say, like a prosecutor is found to have been, you know, um, a cocaine user, and it comes out, so everyone that person prosecuted all of a sudden lines up there rid of habeas corp They they start sending out petitions of habeas corporate your corpy. I guess the petition is first, and then and then if the judge thinks that it's worth hearing the judge issues are rid of habeas corpus bring the body to me. Uh and

and that's that's pretty much how it's used. But you can actually, um, you can contest your in car reseration, I believe, at any point, but using it as a as a legal strategy, that's usually how it's used. It's kind of depressing. I think if I were a prisoner, just being referred to as the body is I don't know, that would worry me immediately. Yeah, and corpus sounds a lot like corpse. Like I said, I didn't take Latin, but I have a feeling those two are probably connected, right.

I thought you said you did take Latin German German? Really? Um yeah, I think though being referred to as the body, I would be much more um, concerned with the fact that I was in prison. You know, at that point you're probably already used to being called the body or the booty or something horrible, and you know, being those those those names being made good on, right, you have your prior recent line exactly. Yeah, So check. Um, we we understand Habeas corpus kind of get an impression of

why it's important. Now, it's it keeps us from being thrown into jail and the key being thrown away. Right, it's our one recourse because really think about it, the system, it is this entity that stands between the state which has the power to throw you in jail, and the individual which can be thrown in jail. The whole purpose of the court system, the legal system, is to find out whether or not this person should be incarcerated or

punished guilt or innocence. Um. So, the it's kind of insinuated. It's placed in between the state and the individual, um too, as a buffer, as a protection as much as it is you know, the the judge and jury that can and exec executioner cases. Right. Okay, So so now we understand how important it is, which kind of gives us an idea then of how egregious the Military Commission's Act of two thousand six was. Right. Well, let's back up

a little, because let's do it. This is not the first time the Military Act of two thousand six, Commissions Act that Habeas corpus has been revoked. Oh oh, that was one other thing we should probably say, hunch chuck. In the Bill of Rights, it actually specifically mentions habeas

corpus it's actually thinking the Constitution. It says the only time that habeas corpus can be suspended, suspended is in times of insurrection or rebellion, when it's when it serves the public safety can be the only time it can be suspended. Not that he opens it up to some interpretation obviously, you know what it shouldn't because it's so explicit. But yes, sadly, over the course of American history has been interpreted in my in my opinion, incorrectly. So, yeah,

you were saying, you give us some examples. Well, one example is during the Civil War President Lincoln, Abraham Lincoln suspended habeas corpus um when the Civil War broke out, and uh, five years later it was reinstated at the end of the Civil War and which insurrection rebellion. You could make a pretty good case that he had every constitutional right to do that Civil War for goodness sakex uh.

And then in sadly, one of our black eyes I guess on our nation's history was the internment of Japanese Americans during World War two, and the same thing happened. Then more than a hundred thousand Japanese Americans were detained and held um, many of them American born citizens. So yeah, I mean, think about how screwed up that is. That would be like after nine eleven if we had um had round up every Muslim, every Muslim, not even Muslim, you know, because that would be based on religion. This

is based on a nationality. So let's say we we rounded up every Saudi American and put them into soccer stadiums that we had, you know, reinforced with concertina wire and fences and German shepherds just because they were Staudias. This happened like sixty years ago, not so long ago, so very good friend of Syrian, I can't imagine a

world where we would do something like that. Yeah, well, it's a good thing you weren't alive and ninety forty two, my friend, because you would have wept tears and the most ironic orup I guess not that words not appropriate. But the most surprising part of the revocation of Habeas corpus in nineteen forty two for Japanese Americans was that

it took uh until nineteen seventy six, Jerry Ford. Gerald Ford finally issued an executive order that reinstated the rid of habeas corpus or the right of habeas corpus to Japanese Americans. So, for that that thirty plus year period, if you were a Japanese American, technically they could throw you in jail for whatever and you couldn't uh contest the legality of your incarceration, which is scary, it is. I wonder if that happened. I don't know, that's a

great question. I have a feeling it was probably just not acted on, and no one really thought much about it until gerald Ford popped up on his radar somehow. Yeah. I wonder how you forget something like that, you know, Roosevelt just forgot to pass it along, you know, Hey, Truman, don't I guarantee Japanese Americans probably didn't forget. Yeah, I wouldn't think so. So now we're up to the modern day time. So the Military Commissions Act two thousand six.

You remember Mark Foley, yes, Florida representative, I think so okay um, And he had a little the email tryst with one of his male aids. His pages, little man boy I think he was like seventeen or eighteen. That story happened the it broke coincidentally, the same time, Congress passed the Military Commissions Acted two thousand six, which allowed it to kind of go into the radar exactly. It

was this huge sweeping act. Really, although it succinct, it really had huge repercussions, and it was basically aimed at terror suspects um and as far as Habeas corpus goes, it related to it related to that right by revoking it for anyone deemed an enemy combatant, which once again

they leave it nice and vague exactly. And they also said that the President and Congress and a few other high officials can deem whoever they want enemy combatant and that can't be contested in Once you're deemed an enemy combatant, you are stripped of your right of habeas corpus, which means that's why that's how all these people down at Guantanamo Bay were kept. And definitely uh and the this

Military Commissions Act, it's so cynical. It was passed after the Supreme Court had ruled that these people were being held there illegally in in flying in the face of the Geneva Convention. So Bush had, you know, Congress passed this federal law that basically overturned that Supreme Court ruling. It's nuts. So all these people are being held there's enemy combatants, and you think, you know, it's who cares

they're terrorists. The problem is is there were plenty of um of his down there where people were released because they've been picked up just because they had the same name as a terror. UM. There is a guy whose name was maher Are I believe that's the pronunciation, you know, I butcher foreign names. He especially Mr r r Uh. He was a Syrian born Canadian national. He's a naturalized citizen computer engineer. And he popped up on the Canadian

Mounted Police's intelligence watch list in two thousand two. UM, and they alerted the US authorities and some other you know, friendly nations that this guy was on their list and that he left the country. He went to Tunisia, all right, and on his way back to to Canada, his home, he had a layover at JFK in New York and

he was picked up by federal authorities. US officials and they secretly rendered to Syria, where he was kept in a prison and tortured for a year before the Syrians, who we outsourced the tortured two you remember, um, concluded that he wasn't a terrorist and had no ties of terrorism. The the Syrians were the ones who decided that the U S couldn't even figure it out. But after your tortured, luckily for Mr ar, the Syrians concluded that he wasn't

a terrorist and set him free. Now that Canada get involved, I would think that they was, Yes, Canada is in big trouble, but really the US is in bigger trouble, um or was? I think it's been swept under the carpet by now. Um. But the US officials told the Canadians that they were going to send him back to Switzerland because he went from Tunisia to Switzerland, and that they the U S said, hey, thanks a lot for telling us. We're just gonna grab him and send him

back to Switzerland. We don't want him in the country, and what you don't really want him either, right, And they put him on a plane to Jordan, took overland of Syria, gave him to the Syrians to be tortured find out what he knew. I think one point, do you make in the article is it was a retroactive act, so it was passing two thousand six. This guy was picked up when two thousand two. Yes, so it was a retroactive act, meaning anyone picked up after September. Yeah,

I had no habeas corpus right. And it also gave retroactive immunity all the way back to September eleven one. Any US official who was engaged in anything that can be construed as torture or illegal as far as it was fell under the umbrella of the War on Terror, which is beyond screwed up. So we still have this act today, it's still on the books, um, and it's

still a huge bone of contention. And hopefully, from what I understand, when Obama comes back into or when he comes into office, he's going to basically repeal the Military Commissions Act. He's going to hopefully get it repealed, and um, he's going to come up with a new lead system that's design just to prosecute high level, high value terror suspects in the US. So basically it's gonna let a bunch of them go, then he's gonna send them back

to their country of origin for prosecution. Incarceration or freedom. I don't know. Uh, the low level ones they're just gonna prosecute in regular American courts. Then the high level ones are gonna be a more secret court um where they get all the aspects of due process, but it's not as transparent. So you know, you they won't be able if their accusers a CIA informant, they won't be able to face that accusers. Sorry, t s you know,

but there's still evidence is going to be submitted. Um. Oh. Another thing about the Military Commission's Act, testimony uh gathered from torture was actually admissible. Really yeah, so if you if you tortured somebody and they confessed to being a terrorist to get you to stop, Oh well there's your confession. Amazing. And you know, this isn't a liberal Democrat thing, it's

a human rights thing. So definitely we should just point that out that it's not like uh President elect Obama just wants to set terrorists free all over the all over the world or anything. No, definitely not. And he's he's actually he's also getting criticism from both sides too, like, you know, should we set up a legal a new legal system just for this, you know, the A. C. L Use criticizing the plan just as much as Republicans are criticizing him for shutting down Guantanamo. But yeah, I

agree with you wholeheartedly. It is a human rights issue, and um, I'm glad to see that it's going to be resolved. I very strongly believe it's going to be resolved, to let's hope. Yeah. The worst part is is that, you know, America is going to spend the next twenty years trying to um regain our our our image or our standards, you know. Um. And then by about that time, that's when all those horrendous documents are going to come out of everything that went down in Guantanamo. It's just

that second jab to the eye. Yeah. Yeah, So, uh, let's hope as corpus ladies and gentlemen look for one time am obey to go the way of disco, hopefully in the next several months. And uh, you know what time it is now, don't you check? I think so? I think it's reader mail time, listener mail. Uh. So, I've got a little Thanksgiving episode love from some folks. Sweet and if you recall, during the Thanksgiving episode, I

made I put the call out to the stuff. You should know nation that if anyone out there is not a vegetarian and they forego the turkey for let's say, steak, then I would love to hear from them. Let's let's play the Colick show. Yeah. Uh, of Americans now eat turkey on Thanksgiving, and I would imagine the tim percent who don't. A lot of those are probably vegetarian. I can't imagine you would choose another meat if you're not a vegetarian other than turkey. You have to be some

sort of communists. Yeah. If we have listeners out there who do, who are not vegetarian and who opt for steak on Thanksgiving, I'd love to hear from you. Okay, so yet you said it, So there we have it. So we actually heard from a few folks. We heard from Chris Ent. That's Ian T. Hope. I'm pronouncing that right. Chris Um. He married a lovely lady from Tokyo and he has a tradition that Josh and I we want to be invited over next year, Mr, and we would

gladly accept any invitation you extended. Right, I would forego the turkey because what they do, Uh, the wife doesn't like the turkey flavor. This is a this is at uh. So what he does is he buys an entire New York strip which is about ten pounds of beef, and he cuts it up into humongous inch and a quarter steaks, and then on Thanksgiving he cooks them up on the grill with pear wood and actual wood charcoal, and he smokes a salmon. Well, he says, pear wood and actual

wood charcoal. I'm just reading, uh, And he smokes a wild salmon and the smoke. So they have smoked salmon and h wood fire grilled steaks and that's what they have for the leftover. Said fantastic again, Mr, And you know we will be giving you well, actually you already know our email. It's a stuff podcast that how stuff works out constantly. Just send us those invitations along, right, I've got a couple of more to him too quickly.

Chris Corby responded that his family eats chicken a capon specifically, which I looked it up. It's a large castrated rooster, yeah, he says, I think it's a big chicken. I noticed that, and hate I hate to tell you, but that's just so it's sort of like a chicken and it's like a turkey is as big as a turkey. Turkey with a falsetto voice right uh. And then we heard from

Travis Ilig, who is a not a vegetarian. He hates turkey, even though his whole family loves it, he doesn't like the flavor and he said that makes Thanksgiving his least favorite holiday, which is very sad because he grew up eating potatoes and rolls uh and having to answer questions about why he doesn't like turkey every year. So now he's done everything from bringing his own Chinese food, pizza

and lobster. I would go for the lot yeah, and uh dining with the family or he said, the last few years they've gone to a Thanksgiving buffet so they can have their turkey. He can have his uh spaghetti wherever he wants. What's that last guy's name, Travis ill. I think Travis has the saddest story out of the three, and I think just for that he deserves a how

Stuff Works t shirt. Travis, if you want to send us your name and address to Stuffed podcast at how stuff works dot com, we will gladly pass that along to you and you can wear it happily while you sadly eat your spaghetti on Thanksgiving. Anybody else who wants to drop us a line let us know something we screwed up in this podcast, which I'm quite sure we did again. It's stuff Podcast at how stuff works dot com. For more on this and thousands of other topics. Does

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