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Making Habeas WorkA Legal History$
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Eric M. Freedman

Print publication date: 2018

Print ISBN-13: 9781479870974

Published to NYU Press Scholarship Online: January 2019

DOI: 10.18574/nyu/9781479870974.001.0001

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Knowing Habeas Corpus When You See It

Knowing Habeas Corpus When You See It

(p.9) 1 Knowing Habeas Corpus When You See It
Making Habeas Work

Eric M. Freedman

NYU Press

Viewing habeas corpus through a legal lens frequently misleads. The common law “rule” against controverting the return to writs of habeas corpus was commonly evaded through devices permitting judicial examination of the underlying facts and law. In many cases concluding “writ denied,” the prisoner in fact obtained “habeas corpus without the writ.” Failure to understand this explains why the Fourth Circuit performed so badly in rejecting the challenge of Yaser Hamdi to his detention as an enemy combatant. The Supreme Court very properly reversed that decision in Hamdi v. Rumsfeld (2004), resulting in the prisoner’s speedy release when the government was confronted with having to actually prove in court the claims it had made on paper.

Keywords:   Common law, Habeas corpus, Controverting the return, Return to writs, Hamdi, Enemy combatant

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