Stuff You Should Know - How Habeas Corpus Works

Episode Date: December 30, 2008

Habeas Corpus is a Latin term meaning "you have the body," and -- in theory -- guarantees an incarcerated person the right to have a court determine whether he or she is imprisoned lawfully. Listen to this podcast from HowStuffWorks to learn more. Learn more about your ad-choices at https://www.iheartpodcastnetwork.comSee omnystudio.com/listener for privacy information.

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They just have way better names for what they call, like what we would call a jackmove or being robbed. They call civil acid. Be sure to listen to the war on drugs on the iHeart Radio App, Apple Podcast, or wherever you get your podcasts. Brought to you by the reinvented 2012 Camry. It's ready. Are you? Welcome to Stuff You Should Know from house.works.com. Hey, and welcome to the podcast. Welcome to Stuff You Should Know. I'm Josh. Say hi, Chuck. Hi. How's it going, Chuck? Great. A little cold, but other than that, I'm fine. Well, Chuck, you

know what? It's supposed to get really, really cold this January 20th, which is a significant day. We didn't plan this segue. That's a good one. Thanks. Thanks. Is that the inauguration? Yes, it is. And they're expecting up to maybe four million people. Right. And worst case scenario they're talking is 30, 31 degrees and raining. Right. Everything will be icy and frozen. And there's going to be old, you know, old people dying left and right, basically. Children. Exactly. In peril. Yeah. So it'll probably be the, if that happens, the most death fraught inauguration of all time. Right. And there's been some pretty bloody ones. Really? I don't know. Okay. No, I'm not sure. But I personally am looking forward to the

inauguration because, as I understand it, Barack Obama, you've heard of him. President-elect. Our next president, yes. He is planning on restoring a part of the Constitution that was shaved off a couple of years ago. A little 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? Yeah. You just continue to surprise and amaze me. I seem like a Spanish guy, don't I? I would have definitely said Spanish. I wish I had taken Spanish. It would, I would be better now for it, but. Although you could definitely get yourself a desk job at House of Works Frankfurt. Is there House of Works Frankfurt? Yeah. Okay. I imagine they

create one for you, though, if you lobbied for it enough. So habeas corpus is Latin and it means you have the body. And essentially what it is, is that it's a legal term. Right. That it's kind of an 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 imprisoned 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 guarantees in the Constitution, in the Bill of Rights, actually. If you really take a look at the Bill of Rights, you know, the Framers Top 10 Great Protections. Right. That list,

they, most of it has to do with being prosecuted. Right. You know, so in taking all together, it's called due process. So you have a right to confront your accusers. Sure. You have a right to counsel. Speedy trial. Speedy trial is a big one. Fair trial. Fair trial. Huge. Yeah. Of course. But the thing is, is, you know, 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. Exactly. These guarantees are being delivered on. And that's what habeas corpus is. It's that mechanism by which these constitutional protections are, you know, guaranteed. Right. Man, that's a great summation. Thanks a lot. Well, that's it for

today. If only. That's all for me, folks. No. Well, don't put this on me, because there's a lot to come. You want me to carry the corpus part? Yeah. Okay. So it's not, this is not a new concept. It actually dates back before the Framers created the Constitution and ratified it in 1789. Right. It goes back to England, correct? It's English common law. In the 17th century, if you're a Catholic, like I was raised, you would be in grave danger of being picked up by the king's man and thrown in jail. Right. Because this is the 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 any longer. He, when whoever was king had established the Church of England. And, you know, that was the

big rival to the Catholic Church. Right. 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 held and not given a trial or anything like that. No due process. Yeah. So Parliament came up with this, this protection. And actually, it may date back further than that. Some people say that it's, it's kind of implied by the Magna Carta. Right. Which was 1215. It running mean. Yeah. It's a long, long time ago. It is. But it actually became codified as habeas corpus in 17th century England. Right. And the framers picked it up and it's in the Constitution. It's a huge right, you know. 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. Right. 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. 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 issue this in a petition of habeas corpus. Right. The judge considers it if the judge decides that, you know, it raises enough questions about the legality of your

imprisonment, you will. Another trial? Well, no, it's not another trial. It's a hearing. Okay. 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 kind of falls in step with the appeal process. Right. So what happened as far as, you know, you murdered somebody, or that's what you're accused of, the judge in a habeas corpus hearing didn't care about that. What they care about is evidence that shows that your, you know, your defense attorney was drunk. Right. That kind of thing. Sure. I get it. And so these things also tend to, as a legal strategy, tend to come in a flurry when, say, like a prosecutor is found to have been, you know, a cocaine user and it comes out.

So everyone that person prosecuted all of a sudden lines up their writ of habeas corpus? They start sending out petitions of habeas corpus. Right. Your corp, I guess. All right. The petition is first and then the call by the writ. And then if the judge thinks that it's worth hearing, the judge issues a writ of habeas corpus, bring the body to me. Right. And that's pretty much how it's used. But you can actually, you can contest your incarceration, 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 our prisoner, just being referred to as the body is, I don't know, that would worry me immediately.

Yeah. Corpus sounds a lot like corpse. I'm 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. No. German. German. Yeah. Really. Yeah. I think though, being referred to as the body, I would be much more concerned with the fact that I was imprisoned. Sure. You know. Yeah. 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 priorities in line. Exactly. Yeah. So Chuck, 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 court 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. Right. 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. Right. Right. So it's kind of insinuated. It's placed in between the state and the individual as a buffer, as a protection, as much as it is, you know, the, the judge and jury that can and executioner. Right. In some cases. Sure. Right. Okay. So, so now we understand how important it is, which kind of gives us an idea then of how egregious the military

commissions act of 2006 was. Right. Well, let's back up a little because let's do it. This is not the first time the military act of 2006 commissions act that habeas corpus has been revoked. Oh, oh, that was one other thing we should probably say. Hunchuck in the bill of rights. It actually specifically mentions habeas corpus. It's actually thinking the constitution. Uh-huh. It says the only time that habeas corpus can be suspended, suspended is in times of insurrection or rebellion. Right. When it's, when it serves the public safety, which is, can be the only time it can be suspended. Right. Not repealed, not opened 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 opinion incorrectly. So, yeah, you were saying, give us some examples. Well, one example is during the civil war, President Lincoln, Abraham Lincoln suspended habeas corpus when the civil war broke out. And five years later, it was reinstated at the end of the civil war. And which insurrection, rebellion, right, you could make a pretty good case that he had every constitutional right to do that. Sure. Civil war. Right. For goodness sakes. 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 II. And the same thing happened then. More than 100,000 Japanese Americans were detained and held

many of them American-born citizens. So, yeah. I mean, think about how screwed up that is. That would be like after 9-11 if we had round up 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 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. Right. Just because they were Saudis. This happened like 60 years ago in the U.S. Not so long ago. Yeah. 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 in 1942, my friend, because you would

have wept tears. That would have. And the most ironic, or I guess not that word's not appropriate, but the most surprising part of the revocation of habeas corpus in 1942 for Japanese Americans was that it took until 1976. Right. Jerry Ford. Gerald Ford finally issued an executive order that reinstated the writ of habeas corpus or the right of habeas corpus to Japanese Americans. So, for that 30-plus year period, if you were a Japanese American, technically they could throw you in jail for whatever and you couldn't 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 had popped up on his radar somehow. Yeah. I wonder how you forget something like that. You know, like Roosevelt just forgot to pass it along. You know, hey Truman, don't forget. I guarantee you 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 2006. You remember Mark Foley? Yes. Florida representative? I think so. Okay. And he had a little email trist with one of his male aides. His pages. A little man boy. I think he was like 17 or 18. That story happened. It broke coincidentally the same time that Congress passed the military commissions act of 2006, which allowed it to kind of go into the radar. Exactly. Yeah. It was

this huge sweeping act. Really, although it was succinct, it really had huge repercussions. And it was basically aimed at terror suspects. Right. 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 an enemy combatant. And that can't be contested. And once you're deemed an enemy combatant, you are stripped of your right of habeas corpus. Right. Which means that's why that's how all these people down at Guantanamo Bay were kept indefinitely. And this military commissions

act is so cynical. It was passed after the Supreme Court had ruled that these people were being held there illegally in flying in the face of the Geneva Convention. So Bush had, you know, Congress pass this federal law that basically overturned that Supreme Court ruling. Right. It's nuts. It is. So all these people are being held there as enemy combatants. And you think, you know, it's who cares? They're terrorists. The problem is, is there were plenty of instances down there where people were released because they've been picked up just because they had the same name as a terrorist. There is a guy whose name was Mahar Arar. I believe that's the pronunciation. You know, I butcher foreign names. I apologize to everyone, especially Mr. Arar. Yes.

He was a Syrian born Canadian national. He's a naturalized citizen computer engineer. And he'd popped up on the Canadian Mounted Polices Intelligence Watch List in 2002. And they alerted the U.S. authorities and some other, you know, friendly nations that this guy was on their list and that he'd left the country. He went to Tunisia. Right. And on his way back to Canada, his home. Right. He had a layover at JFK in New York and he was picked up by federal authorities, U.S. officials. And they secretly rendered him to Syria where he was kept in a prison and tortured for a year before the Syrians, who we outsource or tortured to, you remember, sure, concluded that he wasn't a terrorist and had no ties to terrorism. Right.

The Syrians were the ones who decided that. The U.S. couldn't even figure it out. I know. But after a year of torture, luckily for Mr. Arar, the Syrians concluded that he wasn't a terrorist and set him free. Now, did Canada get involved? I would think that they would. Yes. Yes. Canada's in big trouble, but really the U.S. is in bigger trouble or was. I think it's been swept under the carpet by now. But the U.S. officials told the Canadians that they were going to send him back to Switzerland. He went from Tunisia to Switzerland and the U.S. said, hey, thanks a lot for telling us. We're just going to grab him and send him back to Switzerland. We don't want him in the country and you don't really want him either. Right. And they put him

on a plane to Jordan, took him over land to Syria and gave him to the Syrians to be tortured. Right. Find out what he knew. I think one point that you make in the article is it was a retroactive act. So it was passed in 2006. This guy was picked up when? 2002? Yes. So it was a retroactive act, meaning that anyone picked up after September 11. Yeah, had no habeas corpus rights. And it also gave retroactive immunity all the way back to September 11, 2001 to any U.S. official who was engaged in anything that could be construed as torture rights or illegal as far as it was fell under the umbrella of the war on terror, which is beyond screwed up. Yeah. So we still have this act today. It's still on the books and it's still a huge

bone of contention. And hopefully, from what I understand, when Obama comes back in the, 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 he's going to come up with a new legal system that's designed just to prosecute high level, high value terror suspects in the U.S. So basically, he's going to let a bunch of them go. He's going to send them back to their country of origin for prosecution, incarceration or freedom. I don't know. The low level ones, they're just going to prosecute in regular American courts. Then the high level ones are going to be a more secret court where they get all the aspects of due process, but it's not as

transparent. So they won't be able, if they're accusers of CIA informant, they won't be able to face that accuser. Sorry, TS. But there's still evidence is going to be submitted. Oh, another thing about the Military Commissions Act, testimony gathered from torture was actually admissible. Really? Yeah. So if you tortured somebody and they confessed to being a terrorist to get you to stop, oh, well, there's your confession. Wow. Amazing. In 1968, five black girls dressed in oversized military fatigues were picked up by the police in Montgomery, Alabama. I was tired and just didn't want to take it anymore. The girls had run away from a reform school called the Alabama Industrial School for Negro Children, and they were determined to tell someone

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Apple podcasts, or wherever you get your podcasts. And you know, this isn't a liberal Democrat thing. It's a human rights thing, so. Oh, definitely. We should just point that out that it's not like President-elect Obama just wants to set terrorists free all over the world or anything. No, definitely not. And actually, he's also getting criticism from both sides too. Like, yeah, should we set up a new legal system just for this? You know, the ACLU is 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 I'm glad to see that it's going to be resolved. I very strongly believe it's going to be resolved. Me too. Let's

hope. Yeah. The worst part is, is that, you know, America's going to spend the next 20 years trying to regain our image, our standards. Right. You know, 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. Right. It's just going to be that second jab to the eye. Yep. Yep. So, let's say this corpus, ladies and gentlemen, look for Guantanamo Bay to go the way of disco, hopefully in the next several months. And you know what time it is now, don't you Chuck? I think so. I think it's reader mail time. Listener mail. 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 that clip, shall we? Yeah. 90% of Americans now eat turkey on Thanksgiving. And I would imagine the 10% 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. Yeah. Yeah. You have to be some sort of communist. 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 yeah, you said it, Chuck. So there we have it. So we actually heard from a few folks. We heard from Chris Ent, that's ENT. I hope I'm pronouncing

that right, Chris. He married a lovely lady from Tokyo and he has a tradition that Josh and I, we want to be invited over next year. Yes. Mr. Ent, we would gladly accept any invitation you extend. Right. I would forgo the turkey because what they do, the wife doesn't like the turkey flavor. Mrs. Ent. Mrs. Ent. So what he does is he buys an entire New York strip, which is about 10 pounds of beef, and he cuts it up into humongous inch and a quarter steaks. Nice. And then on Thanksgiving, he cooks them up on the grill with pear wood and actual wood charcoal. And he smokes a salmon. I think pear wood is an actual wood. Well, he says pear wood and actual wood charcoal. I'm just reading. And he smokes a wild salmon in the smoke. So they have smoke salmon and wood

fire grilled steaks. And that's what they have for their leftovers. That is fantastic. Again, Mr. Ent, we will be giving you, well, actually, you already know our email. It's a stuff podcast at howstuffworks.com. So just send us those invitations along. Right. I've got a couple of more to give him quickly. Chris Corvey 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 I was like, yeah, I hate to tell you, but that's just sort of like a chicken. I mean, it's like a turkey is as big as a turkey. It's a turkey with a falsetto voice. Right. And then we heard from Travis Illig, 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 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 lobster. Yeah. And 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 spaghetti, whatever he wants. What's that last guy's name? Travis Illig. 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 stuffpodcast at howstuffworks.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 stuffpodcast at howstuffworks.com. They just like looting. They just like pillaging. They just have way better names for what they call like what we would call a jack move or being robbed. They call civil acid. Be sure to listen to the war on drugs on the iHeart radio app, Apple podcast or wherever you get your podcast.

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