The differences between habeas corpus and due process are important. The Due Process Clause, among other things, regulates the procedures that the government must use before it detains a person and holds the person in custody. But the Suspension Clause safeguards a more elemental habeas privilege. That is, under the Suspension Clause, the judge examines the bare question of whether a person is being held in custody legally. In Habeas Corpus and Due Process, I focus on the independent role of the habeas process. The deep confusion between habeas corpus and due process arises from a critical area of overlap: the habeas judge may examine not only the bare lawfulness of the custody, but also whether officials complied with required procedures to detain the person, including due process requirements.
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