Habeas Corpus: Reuniting Families, Remedy and Recourse

I believe that mass filings of writs of Habeas Corpus would be useful strategic and tactical legal recourse and remedies re the administration's hiding of the children taken from parents seeking asylum at our borders...

I don't know why there hasn't been a flurry of legal activities re writs of Habeas Corpus and multiple court filings or, if there has been, why we haven't heard of such activity....

Habeas corpus (/ˈhbiəs ˈkɔːrpəs/; Medieval Latin meaning literally "that you have the body")[1] is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, to bring the prisoner to court, to determine whether the detention is lawful.[2]

The writ of habeas corpus is known as "the great and efficacious writ in all manner of illegal confinement",[Note 1] being a remedy available to the meanest against the mightiest. It is a summons with the force of a court order; it is addressed to the custodian (a prison official, for example) and demands that a prisoner be taken before the court, and that the custodian present proof of authority, allowing the court to determine whether the custodian has lawful authority to detain the prisoner. If the custodian is acting beyond his or her authority, then the prisoner must be released. Any prisoner, or another person acting on his or her behalf, may petition the court, or a judge, for a writ of habeas corpus. One reason for the writ to be sought by a person other than the prisoner is that the detainee might be held incommunicado. Most civil law jurisdictions provide a similar remedy for those unlawfully detained, but this is not always called habeas corpus.[3] For example, in some Spanish-speaking nations, the equivalent remedy for unlawful imprisonment is the amparo de libertad ("protection of freedom").

Habeas corpus has certain limitations. Though a writ of right, it is not a writ of course.[Note 2] It is technically only a procedural remedy; it is a guarantee against any detention that is forbidden by law, but it does not necessarily protect other rights, such as the entitlement to a fair trial. So if an imposition such as internment without trial is permitted by the law, then habeas corpus may not be a useful remedy. In some countries, the writ has been temporarily or permanently suspended under the pretext of war or state of emergency.[further explanation needed]

The right to petition for a writ of habeas corpus has nonetheless long been celebrated as the most efficient safeguard of the liberty of the subject. The jurist Albert Venn Diceywrote that the British Habeas Corpus Acts"declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty".[4]

The writ of habeas corpus is one of what are called the "extraordinary", "common law", or "prerogative writs", which were historically issued by the English courts in the name of the monarch to control inferior courts and public authorities within the kingdom. The most common of the other such prerogative writs are quo warranto, prohibito, mandamus, procedendo, and certiorari. The due process for such petitions is not simply civil or criminal, because they incorporate the presumption of non-authority. The official who is the respondent must prove his authority to do or not do something. Failing this, the court must decide for the petitioner, who may be any person, not just an interested party. This differs from a motion in a civil process in which the movant must have standing, and bears the burden of proof.


The money for such legal action is being made available in sufficient amounts to make a concerted legal action and movement effective and successful:


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Comment by Safe Bet's Amy on June 21, 2018 at 4:28pm

I could easily see both Trump and Sessions declaring all of them "invading enemies that would harm the US" and not only deny them the right of Habeas Corpus, but inflict indefinite detention, without trial or indictment, under the National Defense Authorization Act. 

BTW, thanks to the ripping away of our rights under NDAA, the President can declare just about anyone, foreign OR domestic, an enemy of the US.  He doesn't need a court, Congressional approval or even proof. = THANKS OBAMA! [who is the jackass who signed the freaking thing!] 

Comment by Ron Powell on June 21, 2018 at 4:54pm

Amy, sadly you're right re Obama signing the thing but Trump and Sessions would still have to jump through some hoops to get Habeas Corpus suspended against certain specific individuals...

"In 2012, the U.S. Congress passed the National Defense Authorization Act (NDAA) with relatively little attention from the media―despite the freedoms it obliterated. The NDAA was enacted to empower the U.S. military to fight the war on terror. But buried in this law are two provisions (Sections 1021 and 1022) that authorize the indefinite military detention, without charge or trial, of any person labeled a “belligerent”―including an American citizen.

These NDAA provisions (which have been re-approved by Congress and signed by President Obama every year since 2012) override habeas corpus―the essence of our justice system. Habeas corpus is the vital legal procedure that prevents the government from detaining you indefinitely without showing just cause. When you challenge your detention by filing a writ of habeas corpus, you must be promptly brought before a judge or into court, where lawful grounds must be shown for your detention or you must be released.

Under Section 1021, however, anyone who has committed a “belligerent act,” can be detained indefinitely, without charges or trial, as a “suspected terrorist.” This is a direct violation of the U.S. Constitution and our Bill or Rights. In The Federalist No. 84, Alexander Hamilton stressed the importance of the writ of habeas corpus to protect against “the favorite and most formidable instruments of tyranny.”


Comment by Safe Bet's Amy on June 21, 2018 at 7:11pm

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Comment by alsoknownas on June 22, 2018 at 5:34am

The effects of the NDAA as discussed here and if known more widely could cause many to stifle their thoughts and actions.

It could yet become the most effective pre-emptive strike on the 1st Amendment.

The latest "cuffs for all" change in border "policy" is just practice.

Comment by alsoknownas on June 22, 2018 at 6:09am

I know what is being discussed, thank you.

It doesn't appear to me that waiting is needed for the government to "establish and prove that these children are "belligerent" and have committed acts of belligerence."   The actions are already underway.


Comment by Ron Powell on June 22, 2018 at 6:13am

We're talking about Habeas Corpus re the detention of children...

To deny Habeas Corpus in these cases, the government would have to establish, and prove, that these children are "belligerent" and have committed acts of belligerence...This child is no belligerent and cannot commit an act of belligerence

Comment by koshersalaami on June 22, 2018 at 6:34am

Either Obama will turn out to be really awful on the rights he’s given away or tolerated to fight terrorism (like the phone taps and this) or we’ll find out one day that the terrorist threat was way, way worse than we had any idea. My uneducated guess is that he was given way exaggerated intelligence. 


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