Comments on: The Great Writ Then and Now http://www.thefreemanonline.org/featured/the-great-writ-then-and-now/ Ideas on Liberty Wed, 15 Feb 2012 00:25:45 +0000 hourly 1 http://wordpress.org/?v=3.3 By: John Anello http://www.thefreemanonline.org/featured/the-great-writ-then-and-now/comment-page-1/#comment-18508 John Anello Tue, 27 Oct 2009 12:51:22 +0000 http://www.thefreemanonline.org/?p=12619#comment-18508 Habeas corpus petitions are still fairly common. Most convicts file one after they are sentenced. However, very few prisoners are actually “produced” because most Habeas petitions have no merit whatsoever. In order for an imprisonment to be unlawful under habeas corpus it must violate a federal law. Most imprisonments today, fail to do that. Courts are also reluctant to grant Habeas corpus petitions because convicts are entitled to appellate review. Habeas corpus has certainly lost some of its bite in modern times. Regarding the Gitmo detainees, I feel whether or not they are entitled to habeas corpus is irrelevant. Under the 11th Amendment they have no right to sue the United States. The 11th Amendment reads, “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Of course the Supreme Court doesn’t seem to care much about the 11th Amendment these days. Furthermore, I do not see why any lawyer would rush to Gitmo to defend these “enemy combatants.” Doing so could subject them to a charge of treason under the Constitution. Article III Section 3 defines treason as “levying War against [the U.S.] or adhering to their Enemies, giving them Aid and Comfort…” Seems like under this Clause these lawyers could be tried for treason. Habeas corpus petitions are still fairly common. Most convicts file one after they are sentenced. However, very few prisoners are actually “produced” because most Habeas petitions have no merit whatsoever. In order for an imprisonment to be unlawful under habeas corpus it must violate a federal law. Most imprisonments today, fail to do that. Courts are also reluctant to grant Habeas corpus petitions because convicts are entitled to appellate review. Habeas corpus has certainly lost some of its bite in modern times.
Regarding the Gitmo detainees,

I feel whether or not they are entitled to habeas corpus is irrelevant. Under the 11th Amendment they have no right to sue the United States.

The 11th Amendment reads, “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Of course the Supreme Court doesn’t seem to care much about the 11th Amendment these days.

Furthermore, I do not see why any lawyer would rush to Gitmo to defend these “enemy combatants.” Doing so could subject them to a charge of treason under the Constitution. Article III Section 3 defines treason as “levying War against [the U.S.] or adhering to their Enemies, giving them Aid and Comfort…” Seems like under this Clause these lawyers could be tried for treason.

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