Visiting expert unpacks America’s fraught history with habeas corpus

Ramapo invited Professor Richard Salomon, a Department of Law Visiting Lecturer at West Point, to hold a discussion about civil liberties during times of war. The main topic was the Constitutional right of habeas corpus, its history and the struggle to find a balance between civil rights and national security.


What is habeas corpus?

Habeas corpus is the constitutional right that protects individuals from unlawful or indefinite imprisonment. Essentially, it is a summons from a judge that forces detainers to bring a detainee into court to determine whether there are lawful grounds for the detainee’s imprisonment. However, it is not a “get out of jail free card,” since a person can still be found guilty after due process.

“I believe that habeas corpus is our most important civil right because if you can’t get a judge to hear your case, the government can do whatever it wants with you. None of your other civil rights will last,” Salomon said.

The idea of habeas corpus was so important to the American colonists that the first law Congress signed, the Federal Judiciary Act, involved the right of habeas corpus.

Salomon described two major instances where habeas corpus was suspended as a response to “threats to the existence of this country.” Both instances led to abuse and were considered unconstitutional.


Abraham Lincoln and Civil War

The first instance he described was President Abraham Lincoln’s suspension of habeas corpus during the Civil War. He gave the John Merryman case as an example and explained the circumstances surrounding Lincoln’s suspension of habeas corpus. In 1861, the Merryman was arrested by the military and taken to Fort McHenry. He was not told the reason for his arrest and was denied the right to see a lawyer. Merryman’s lawyer petitioned the local court for a habeas corpus writ. The judge of the local federal court was U.S. Supreme Court Chief Justice Robert Taney.

Taney issued the writ to General George Cadwalader stationed at Fort McHenry and Cadwalader refused, explaining that Lincoln had suspended habeas corpus. Taney was unable to write the legal opinion “Ex Parte Merryman,” which explained that Lincoln’s suspension of habeas corpus was unconstitutional. Lincoln ignored the public backlash and justified that it was for the safety of the nation.

Salomon also explained the context behind surrounding the arrest. Maryland was on the verge of seceding in 1861. A troop of Union soldiers were attacked by a Baltimore mob. Merryman was a member of the local militia group that was tasked with destroying bridges and roads to keep Union soldiers out of the city. Salomon expressed that the specific reason for his arrest is still unknown.


Franklin Delano Roosevelt and World War II

“[Habeas corpus is] so much a part of our culture. We never think of it. We never think of the need to petition the court for a writ to compel it at least in times of peace,” he said. Salomon transitioned into the second instance where President Franklin Delano Roosevelt (FDR) suspended habeas corpus during World War II to establish the Japanese internment camps.

He said FDR was “in this respect a far greater tyrant than Lincoln” due to the scale of arrests, 120,000 people. It was mass incarceration targeting people of Japanese descent and Roosevelt made no gesture or mention towards lawful suspension, which occurs in situations where the safety and security of citizens is more important than an individual’s rights.

Salomon discussed the Fred Korematsu case before the Supreme Court as an example which he considers “one of the worst decisions of all time.” In a 6-3 ruling, the court upheld his conviction since the ruling was not made based on the fact that America was at war with Japan. He also explained that the courts had been fed lies by government lawyers about Japanese Americans being spies for Japan.

Salomon ended the talk by sharing his opinion on the state of habeas corpus today. “Well, it’s accumulated some scars over the years for sure. But the great writ remains intact, a reminder that a state swollen with its own authority has no right to do what [it] pleases, but only what the law allows.”

Featured photo by Matthew Wikfors