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 It wasn't until 1976 that President Gerald Ford rescinded Executive Order 9066, officially restoring habeas corpus rights to Japanese-Americans once more [source: Honolulu Advertiser].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.
More Great Links
- 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
- Olbermann, Keith. "The beginning of the end of America." MSNBC. October 19, 2006. http://www.msnbc.msn.com/id/15321167/
- 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
- "A brief history of habeas corpus." BBC. March 9, 20065. http://news.bbc.co.uk/1/hi/magazine/4329839.stm
- "Habeas corpus." LectLaw. http://www.lectlaw.com/def/h001.htm
- "Habeas Corpus Act of 1679." Constitution.org. http://www.constitution.org/eng/habcorpa.htm
- "Can habeas corpus be suspended? - Ex parte Milligan, 71 U.S. 2 (1866)." Louisiana State University. http://biotech.law.lsu.edu/cases/pp/Milligan.htm
- "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&
- "Understanding habeas corpus." Law Offices of Walter Reaves. http://www.postconviction.com/habeas-corpus.html
- "United States Constitution: Article I." Cornell University Law School. http://www.law.cornell.edu/constitution/constitution.articlei.html
- "United States Constitution: Bill of Rights." Cornell University Law School. http://www.law.cornell.edu/constitution/constitution.billofrights.html
- "'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