The Corner

Why Is Habeas Relevant?

One underlying question in the debate over Hamdi is why Justice Scalia focuses on habeas. The reason is this: Since before this nation’s founding, the principles of due process required that a detained individual be tried or released. The writ of habeas corpus was a means of forcing the release of an individual who was detained but not tried. In the Hamdi case, the government claimed that if a U.S. citizen is an enemy combatant, he can be detained for purposes of interrogation in the United States even if habeas is not suspended. This has no precedent in law or tradition. Congress’ authorization of force after 9/11 does not cure the Constitutional problem because the resolution is not tantamount to a suspension of habeas.

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.

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