Episode 4. Larry May on Habeas Corpus

Are habeas corpus petitions, as Barack Obama put it, “the foundation of Anglo-American law”? Or are they just nuisance lawsuits, “whether it be about the diet, whether it be about the reading material,” that will just slow down the legal system and leave us “bollixed up,” as John McCain claims? On this episode of Public Ethics Radio, we discuss these issues with Larry May.

May distinguishes between a minimalist and maximalist sense of habeas corpus. As it’s practiced in the U.S. today in the maximalist sense, a habeas corpus petition is essentially any constitutional challenge a prisoner may file against his imprisonment. Indeed, most death row litigation falls under habeas corpus. In the minimalist sense, the right to habeas corpus simply entitles the prisoner to appear in court and have the charges read against her, whereupon she may be immediately returned to prison.

The protection the minimalist right offers is limited. And yet, as May points out, even this more basic meaning of habeas is being denied at Guantanamo, where prisoners have languished for years without even facing charges. In PER episode 4, Christian Barry talks to Larry May about the meaning of and moral significance of habeas.

And a great big thank you to the brilliant Barbara Totterdell, who was invaluable in helping us get this show together.

Larry May’s discussion of habeas is based his unpublished paper, “Habeas Corpus and Global Justice.” He is Professor of Philosophy at Washington University in St. Louis and a Research Professor of Social Justice at the Centre for Applied Philosophy and Public Ethics. His website is http://artsci.wustl.edu/~philos/people/may/index.html.

Click here to download (37:22, 26 mb, mp3), or click on the online media player below. You can also download the transcript.


The Suspension Clause of the U.S. Constitution, which deals with habeas corpus, is in Article I, Section 9.

For more on the Magna Carta, check out the British Library’s page.

Keith Olbermann made the comment that “the reality is, without habeas corpus, a lot of other rights lose their meaning,” on his show, Countdown. Transcript and video here.

Larry explores the historical views on habeas in his paper. For the references to Bracton and Blackstone, see pp. 4–5.

The U.S. Supreme Court has issued a series of rulings on habeas corpus as it relates to Guantanamo. These are Hamdi v. Rumsfeld, 542 U.S. 507 (2004), Hamdam v. Rumsfeld, 548 U.S. 557 (2006), and Boumediene v. Bush, 553 U.S. ___ (2008).

Larry mentions a book on the disappeared in Latin American. It is Jacobo Timmerman, A Prisoner without a Name, a Cell without a Number.

John McCain responded to Boumediene v. Bush on June 13, 2008 in Pemberton, New Jersey. The original source of our audio is unavailable, but here’s another (slightly abbreviated) YouTube clip.

The quote from Chief Justice John Roberts—”The dangerous mission assigned to our forces abroad is to fight terrorists, not serve subpoenas”—is on p. 17 of his dissent to Boumediene v. Bush.

The law which was found to be (in part) unconstitutional in that decision is the Military Commissions Act.

Obama spoke about habeas corpus on September 8, 2008 at Farmington Hills, Michigan. The video.

Christian references a book by Bruce Ackerman: Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism. The quote is drawn from an op-ed: “Railroading Injustice,” Los Angeles Times, Sept. 28, 2006.

Attentive listeners will recall a discussion of Sudanese President Omar Hassan Ahmad al-Bashir from episode 3. For more on his indictment by the International Criminal Court, look here.

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