Article One, Section 9, clause 2 of the United States Constitution decrees, “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” This protection against unlawful arrest and detention is derived from English common law first documented in the “Assize of Clarendon,” a re-statement of rights during the reign of Henry II (1154-1189). Inclusion in the U.S. Constitution is often attributed to similar language in the Magna Carta.
Habeas corpus (literally “produce the body”) was at the center of cases filed by Guantanamo Bay detainees following the September 11, 2001 terrorist attacks. In Boumediene v. Bush (2008), the U.S. Supreme Court affirmed the right of foreign combatants to petition for a writ of habeas corpus with some limitations (e.g. the number of petitions allowed). In the majority opinion for the Court, Justice Anthony Kennedy wrote that an executive suspension of habeas corpus suggests the political branches of government have the ability to “switch the Constitution on or off and would lead to a regime in which they, not this court, ‘say what the law is’.”
In the United States, the length of time a suspect can be held without being charged is covered under state law. In most jurisdictions, the time frame for either charging or releasing a prisoner is 72 hours. In a few states, including California, uncharged suspects can only be held for 48 hours.
My exploration of this topic was triggered by FBI Director James Comey’s letter to the chairmen of several congressional committees, informing them of “the existence of emails that appear to be pertinent to the investigation [of Secretary Clinton’s personal email server].” There was no indication of the nature or extent of the discovery. In a (non-public) follow-up memorandum to FBI employees justifying the letter to Congress, Comey says, “I also think it would be misleading to the American people were we not to supplement the record.” Yet in the same paragraph, he gives more information for internal consumption than he does in the public correspondence.
At the same time, however, given that we don’t know the significance of this newly discovered collection of emails, I don’t want to create a misleading impression. In trying to strike that balance, in a brief letter and in the middle of an election season, there is significant risk of being misunderstood, but I wanted you to hear directly from me about it.
What does this have to do with the writ of habeas corpus? While Secretary Clinton has not been physically detained, her reputation and standing as a presidential candidate has been indefinitely “put on hold” by the FBI. Late yesterday, the Clinton campaign issued what, in effect, is a writ of habeas corpus. It demanded that, within the next two days, the FBI explain the nature of the evidence which the Director felt warranted the letter to Congress. For different reasons, the Trump campaign has echoed this sentiment.
I have no idea whether the information discovered during an investigation of former Congressman Anthony Wiener’s alleged sexting with an underage female is the smoking gun that will derail Secretary Clinton’s chances of becoming the next president. However, as of this morning, there are several reports which suggest the FBI Director acted more on speculation than evidence. Newsweek and the Los Angeles Times report “none of the emails were to or from Clinton.” And some or all may be duplicates of emails already in the FBI’s possession. Director Comey is also reported as saying he has not personally looked at any of the emails.
The Clinton campaign is rightfully demanding Director Comey “show me the body.” My question is, “Shouldn’t the head of the FBI be held to the same standard under the Constitution as every other law enforcement officer in the United States?”
For what it’s worth.