Why is habeas corpus important?

King Charles II, the ruler of England when habeas corpus first became law.
Time Life Pictures/Mansell/Time Life Pictures/Getty Images

During just about any conversation with a civil liberties advocate or constitutional lawyer, the concept of habeas corpus will likely come up. Habeas corpus is Latin, meaning, "You have the body" [source: National Archives]. It's sort of legal shorthand from a judge to a jailer: You've got a prisoner, bring him or her to me so we can determine if he or she is being imprisoned legally.

Habeas corpus made headlines in the early 21st century, after the United States revoked this long-established right. MSNBC declared it was "[t]he beginning of the end of America" and the New Yorker prophesied the "[k]illing of habeas corpus" [source: MSNBC and New Yorker]. We'll get to the debate that sparked these headlines a little later. First, let's talk about the concept's history.


­The right of habeas corpus protects a prisoner -- it allows a prisoner to indicate that his or her constitutionally guaranteed rights to fair treatment in a trial have been infringed upon. The concept originally found its way into law in 17th-century England, when Catholics were considered disloyal to the throne of King Charles II. Catholics could be imprisoned as a result of their religious allegiances [source: Gardiner]. 

­Nowadays in Western countries, the thought of government agents whisking off a citizen to a secret prison seems unlikely. So why do we still have habeas corpus? Is it simply an antiquated law we no longer need?

The short answer is unequivocally no. It's the right of habeas corpus that makes the thought of being illegally imprisoned in a democratic society such a far-off idea. Habeas corpus is a prisoner's one way to question the legality of his or her imprisonment. Clearly, habeas corpus is an important aspect to U.S. law -- as well as other countries' legislative bodies. But how does it support the dignity of the legal process exactly? Find out about how habeas corpus works on the next page.


How Habeas Corpus Works

U.S. Attorney General Alberto Gonzales testifies at a Senate Judiciary hearing concerning, in part, the government's view of habeas corpus.
Mark Wilson/Getty Images

Habeas corpus isn't an original American concept. It became law in the West when England's Parliament enacted the Habeas Corpus Act of 1679 [source: Constitution.org]. The act came at a time when the English were subject to unlawful imprisonment at the hands of the king and his deputies. Prior to 1679, habeas corpus was around in spirit, if not in name. Legal scholars generally point to its existence as far back as the Magna Carta, an English document ratified in a meadow in Runnymede, England, in 1215. This 63-chapter document now serves as the foundation for most of Western and democratic law [source: Linebaugh]. The idea of habeas corpus may be Anglo-Saxon in its earliest incarnations, but it was adopted by U.S. policy makers around 1789.

Habeas corpus is part of a twofold process. In a petition for habeas corpus, a prisoner (or another interested party) raises doubts about the legality of his or her imprisonment. If the petition is successful in demonstrating that the imprisonment justifies an examination, a judge will issue a writ of habeas corpus. This is the order for the prisoner to be brought to court.


In a decision handed down by the Supreme Court in 1992, the justices substantiated the importance of habeas corpus, calling it "the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action" [source: The Nation]. Without it, a person could be imprisoned unlawfully without any recourse for securing his or her release.

The writ of habeas corpus isn't meant to determine whether the detainee is guilty of the crime of which he or she is accused -- it's a call for an examination of the legality of his or her imprisonment [source: BBC]. Was the due process of law followed? Did the judge in the case railroad the defendant? Was the jury tampered with? Did the prosecution hide evidence that exonerates the prisoner?

Issues like these may be raised in a habeas corpus petition. There must be proof or evidence supporting these claims to warrant further investigation. That's because habeas corpus is a part of due process by the law. Due process is a group of constitutionally guaranteed rights that includes:

  • a fair and speedy trial
  • counsel
  • freedom from unlawful search and seizure
  • trial by a jury of peers
  • an appearance before one's accusers

But even a constitutional guarantee carries little weight if there's no mechanism in place to grant recourse to the person on the receiving end of that guarantee. Habeas corpus ensures that the right to due process is supported by action. It's the quintessential example of hoping for the best while planning for the worst.

Habeas corpus can be used as a last-ditch strategic tool in a criminal case, but only after the appeals process has been exhausted. A court reviewing a habeas plea can consider new evidence, whereas in an appeal, no new evidence can be submitted. Once an issue raised in a habeas plea has been decided, however, it cannot be debated again in regard to the same case [source: Reaves].

The U.S. Constitution provides for suspension of habeas corpus in only extreme and express cases. Exactly when and what these cases are is subject to interpretation.

Read about some cases when habeas corpus was suspended in America -- and the outcry that ensued -- on the next page.


Famous Cases of Denied Habeas Corpus

Japanese-Americans interned at a concentration camp in Newell, Calif., circa 1942.
Image courtesy Library of Congress

The framers of the Constitution recognized that there are situations where revoking habeas corpus may be necessary for the common good. Specifically, the provision surrounding any suspension of habeas corpus is defined in Article 1, Section 9 of the Constitution. This section states that habeas corpus "shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it" [source: Cornell University].

Such instances have, in fact, emerged in American history. During the Civil War, President Abraham Lincoln suspended habeas corpus following the outbreak of the Civil War. It was restored five years later in 1866 [source: LSU]. In the 20th century, habeas corpus was suspended for a select group: people of Japanese descent. More than 100,000 Japanese-Americans were detained during World War II. Although they were of Japanese ancestry, the majority were American-born or naturalized citizens. Yet, beginning in 1942, prison camps opened to hold these people indefinitely. What's more, by presidential decree (Executive Order 9066), they were stripped of the due process provided by habeas corpus [source: The Nation]. It wasn't until 1976 that President Gerald Ford rescinded Executive Order 9066, officially restoring habeas corpus rights to Japanese-Americans once more [source: Honolulu Advertiser].


More recently, following the attacks on Sept. 11, 2001, and during the ensuing War on Terror, President George W. Bush and Congress concluded that conditions warranted repealing the right to habeas corpus. As a result, the Military Commissions Act was passed. Section 7 of the Military Commissions Act of 2006 reverses the guarantee of habeas corpus to all people detained by the United States. The act removes any court's ability to hear a petition of habeas corpus for anyone deemed an enemy combatant by the U.S. government. The act was retroactive, relating to the detention of all enemy combatants by the U.S. government following Sept. 11 [source: Library of Congress].

The provision eliminating the right to habeas corpus for certain individuals in the Military Commissions Act proved controversial. Media outlets issued such headlines as "RIP, Bill of Rights, RIP" [source: The Nation]. Others proclaimed the act marked "the death of habeas corpus" [source: MSNBC]. In January 2007, U.S. Attorney General Alberto Gonzales responded to this public criticism. During a Senate Judiciary Committee hearing, Gonzales pointed out that there is no expressed provision in the Constitution that grants protection by habeas corpus to anyone. Senator Arlen Specter retaliated by proposing that rights couldn't really be taken away if the Constitution didn't grant them in the first place [source: San Francisco Chronicle].

During the fallout from the passing of the Military Commissions Act, MSNBC journalist Keith Olbermann demonstrated the importance of habeas corpus. He pointed out that without habeas corpus, nine of the 10 articles in the Bill of Rights are lost. The only one that remains after the removal of habeas corpus is the Third Amendment: Americans' freedom from being forced to quarter soldiers in their homes.

Without recourse against false or illegal imprisonment, the other rights granted to Americans can't stand alone. So even if habeas corpus -- you have the body -- sounds archaic, it's actually quite important -- even today.

For more information on the Constitution and other related topics, visit the next page.


Habeas Corpus FAQ

What does habeas corpus mean?
Habeas corpus is Latin for "you have the body". It is a kind of legal shorthand from a judge to a jailer, asking them to bring the prisoner they have in their custody so that it can be determined if they are being imprisoned legally.
What does it mean to suspend habeas corpus?
There are certain situations where revoking habeas corpus may be necessary for the common good. Article 1, Section 9 of the Constitution states that habeas corpus "shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it”. For example, it was suspended or withheld during the Civil War in 1861 and again when Japanese people were detained during World War II.
Why is writ of habeas corpus issued?
If the petition for habeas corpus is successful in showing that the imprisonment justifies an examination, a judge issues a writ of habeas corpus. This is an order from the judge for the prisoner to be brought to court.
When was the last time habeas corpus was suspended?
The last time habeas corpus was suspended was following the September 11, 2001 attacks and during the subsequent War on Terror. On October 17, 2006, President George W. Bush signed a law suspending the right of habeas corpus to all people detained by the United States government. The act was retroactive, relating to the detention of all enemy combatants in the War on Terror.
Who files a writ of habeas corpus?
A writ of habeas corpus can be filed by the person who is held in detention or custody. It can also be filed on behalf of the prisoner by a friend or relative if the prisoner is not able to file it on their own.

Lots More Information

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  • Brecher, Jeremy and Smith, Brendan. "Right to trial imperiled by Senate vote." The Nation. November 14, 2005. http://www.thenation.com/doc/20051128/brecher
  • Egelko, Bob. "Gonzales says the Constitution doesn't guarantee habeas corpus." San Francisco Chronicle. January 24, 2007. http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2007/01/24/MNGDONO11O1.DTL
  • Gardiner, Samuel Rawson. "A Student's History of England: From the Earliest Times to 1885." Longmans, Green and co. 1891. http://books.google.com/books?id=-8kuAAAAMAAJ&pg=PA617&lpg=PA617&dq=habeas+corpus+act+1679&source=web&ots=TpS8Hij-4M&sig=O1VMbZA2yEo_U_4ZqPAI1vewfiA&hl=en#PPA617,M1
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  • Olbermann, Keith. "The death of habeas corpus." MSNBC. October 11, 2006. http://www.msnbc.msn.com/id/15220450/
  • Toobin, Jeffrey. "The killing of habeas corpus." The New Yorker. December 4, 2006. http://goliath.ecnext.com/coms2/summary_0199-6039774_ITM
  • Tsai, Michael. "Executive Order 9066." The Honolulu Advertiser. July 2, 2006. http://the.honoluluadvertiser.com/150/sesq3order9066
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  • "Petitioner's notice of the unconstitionality of the attempted suspension of habeas corpus in the Military Commissions Act of 2006." U.S. District Court for the District of Columbia. October 30, 2006. http://www.pegc.us/archive/Paracha_v_Bush/pet_notice_re_suspension_20061028.pdf
  • "S.3930." Library of Congress. October 16, 2006. http://thomas.loc.gov/cgi-bin/bdquery/z?d109:SN03930:@@@D&summ2=m&
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  • "'You have the body': Habeas corpus case records of the U.S. Circuit Court for the District of Columbia, 1820-1863." U.S. National Archives. http://www.archives.gov/publications/prologue/2005/fall/habeas-corpus.html http://www.archives.gov/publications/prologue/2005/fall/habeas-corpus.html