A Latin expression meaning “you have the body,” habeas corpus refers to a legal action by which an imprisoned person may have the legitimacy of his or her detention reviewed by a court of law empowered to order his release.
A writ of habeas corpus, formally habeas corpus ad subjiciendum, orders the authority imprisoning a person to physically bring that person before the court that issued the writ. The writ also traditionally orders the imprisoning authority to provide information concerning the date and cause of the imprisonment. The issuing court determines the legality of the imprisonment and may order the release of individuals from unlawful detention. As a procedural remedy, the writ only contemplates whether due process has been satisfied and is not concerned with substantive determinations of guilt or innocence.
Although writs with similar effects were issued during the 12th century, the celebrated English jurist Sir William Blackstone records the first issuance of a writ of habeas corpus ad subjiciendum as occurring in 1305 and relying upon the prerogative of the royal sovereign. “The King,” according to Blackstone, “is at all times entitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted.” In response to several judicial rulings seeking to diminish the historic power of the writ, the English Parliament enacted the Habeas Corpus Acts of 1640 and, famously, 1679. The latter statute codified the procedures by which common law writs of habeas corpus were to be issued. In the name of the monarch, a court issued the writ and thereby commanded the bodily production of an imprisoned person. Petitions could be addressed to the court by the prisoner himself or on his behalf by a third party. The writ could be addressed to a lower court, an imprisoning authority, or a private person. Blackstone considered this “great writ of liberty” to be the most celebrated and efficacious writ in English law.
The U.S. Constitution explicitly provides for the right of habeas corpus in Article I, Section 9, Clause 2: “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.” The Judiciary Act of 1789 established the federal writ of habeas corpus for civil appeals from federal (including military) criminal convictions. The power of federal courts to issue writs of habeas corpus reached its zenith when the U.S. Supreme Court decided in Jones v. Cunningham (1963) that state prisoners could petition federal courts. This power was slightly curtailed following the Oklahoma City bombing in 1996, when President Bill Clinton signed the Antiterrorism and Effective Death Penalty Act, restricting federal jurisdiction and imposing a one-year statute of limitations for prisoners seeking to enforce the writ following a criminal conviction.
In accordance with the Constitution’s text, habeas corpus has been suspended on several occasions. During the Civil War, President Abraham Lincoln suspended habeas corpus and Congress passed the Habeas Corpus Suspension Act in 1863. Confederate leader Jefferson Davis did likewise in the southern states. Relying upon the Civil Rights Act of 1871, President Ulysses S. Grant suspended habeas corpus in South Carolina in response to Ku Klux Klan attacks against Republicans during Reconstruction. In 1905, Governor-General Luke Edward Wright suspended habeas corpus in the Philippines. Hawai‘i Governor Joseph Poindexter suspended habeas corpus following the bombing of Pearl Harbor. During World War II, the Supreme Court ruled in Ex parte Quirin (1942) that “unlawful combatants” facing military tribunals had no right to habeas corpus. Following the war, the court ruled in Johnson v. Eisentrager (1950) that German war criminals captured in Germany had no recourse to U.S. courts for the issuance of writs of habeas corpus.
Habeas corpus became a central issue in American politics following the terrorist attacks of September 11, 2001, and the ensuing global war on terror conducted by the George W. Bush administration—particularly the indefinite imprisonment of suspected terrorists in the U.S. detention facility at Guantanamo Bay, Cuba. The Supreme Court confirmed in Hamdi v. Rumsfeld (2004) that U.S. citizens labeled as “enemy combatants” retained limited habeas corpus rights allowing them to challenge their detentions before an impartial tribunal. Shortly thereafter, in Rasul v. Bush (2004), the court extended such rights to foreign citizens held at Guantanamo Bay.
In response, Congress sought to restrict and manage the habeas corpus rights of alien detainees at Guantanamo Bay with the Detainee Treatment Act (DTA) of 2005. Yet in Hamdan v. Rumsfeld (2006), the Supreme Court granted a request for habeas corpus challenging the legality of continued detentions authorized by military commissions, despite the government’s contention that the DTA excluded such jurisdiction. Congress responded by passing the Military Commissions Act of 2006, which restricted habeas corpus for alien “unlawful enemy combatants.” This portion of the law was struck down by the Supreme Court in Boumediene v. Bush (2008).
President Barack Obama immediately upon taking office issued an executive order declaring that detainees at Guantanamo Bay “have the constitutional privilege of the writ of habeas corpus.” However, the U.S. Senate has since rejected numerous bills to prohibit the indefinite detention of U.S. citizens and President Obama has signed National Defense Authorization Acts (NDAA) permitting the indefinite military detention of American citizens. Legal challenges and political debate concerning the NDAA’s “indefinite detention” language ensure that habeas corpus rights will remain a central issue during the enduring global war on terror.
- Blackstone, William. Commentaries on the Laws of England. Chicago: University of Chicago Press, 1979.
- Federman, Cary. The Body and the State: Habeas Corpus and American Jurisprudence. Albany: State University of New York Press, 2006.
- Greenhouse, Linda. “Justices, 5-4, Back Detainee Appeals for Guantanamo.” New York Times (June 13, 2008). http://www.nytimes.com/2008/06/13/ washington/13scotus.html?pagewanted=all&_r=0 (Accessed September 2013).
- Nutting, Helen A. “The Most Wholesome Law: The Habeas Corpus Act of 1679.” The American Historical Review, v.65/3 (April 1960).
- Wert, Justin J. Habeas Corpus in America: The Politics of Individual Rights. Lawrence: University Press of Kansas, 2011.
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