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Right of Habeas Corpus in the United States of America Research Paper

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Updated: May 27th, 2019


Many laws have been put in place to ensure that people get to enjoy their freedom. However, there comes a time when people commit various crimes and it becomes necessary to arrest them. In certain instances, collection of evidence takes time and prosecutors need time to present these suspects to court. Nevertheless, there are cases where some people are arrested and not taken before a court of law.

Habeas corpus is a law requiring that any person who is arrested should be taken before a court of law for trial. The law prohibits unfair detentions which would otherwise be practiced by various law enforcers. The U.S. government has received mixed reactions regarding its application of the law to people who it has detained in the name of war against terror.

The question that many people are asking is why deny these prisoners their right of being fairly tried yet the war against terror does not seem to have an end in sight? Moreover, some people are questioning whether it is legal to hold people in detention without any prove whether they are terrorists or not. In a nutshell, there is need to determine how habeas corpus should be applied in the war against terrorism.

Evolution of Habeas Corpus

Habeas corpus was being used in England from as early as 1215 though through a collection of various court orders. In ancient England, the king and his courts used habeas corpus to ensure that any person who was detained was brought before court.

However, this has evolved over time and it is now used by either the detained person or any other person acting on his/her behalf to demand that the detained person be brought before court to determine whether the detention is legal. In this regard, habeas corpus was a vital constituent of unwritten common law.

Consequently, habeas corpus has been used by several generations especially in England to put to check the ability of the state to curtail liberty of the citizenry (Krent, 2005). It is a way by which an individual can fight against the government’s unlimited power over various issues.

In the United States, habeas corpus was among the gifts that were passed on to the people at independency. It was inherited from the British colonialists who believed that habeas corpus was actually a birth right. Its application can be traced to as far as 1659 when people conducted a civil action after a judge in Massachusetts affirmed the detention of a person who had been arrested for resisting an illegal tax. Habeas corpus was incorporated into the constitution and can also be found in statutory laws.

Its application in the U.S has been faced with contradictions in some occasions given that it is difficult for one court to release a person under conviction and sentence of another court. Nevertheless, it is used in many instances to fight against wrongful arrest, detention or imprisonment.

Though it does not supersede other writs like that of fair trial, habeas corpus is very crucial in ensuring that prisoners are able to get justice. It is not only inhuman but also morally wrong to arrest and detain a person without any reasonable excuse (Latimer, 2011). Application of habeas corpus is however, a civil proceeding aimed at ensuring that people are not illegally deprived of their liberty. Moreover, it is commonly used after conviction to challenge the laws that were used in the proceedings.

Importance of Habeas Corpus

Habeas corpus is more or less a way of assuring a prisoner that he or she will receive a fair trial. There are very high chances that prisoners would not be given any chance to defend themselves if they were waited for their sentences in detention.

Law enforcing officers and the state would go around arresting anybody who is against their way of rule and detain them. In this regard, habeas corpus is essential in ensuring that each prisoner is accorded all the possible constitutional rights (Gelzer, 2012). It also gives prisoners and any other concerned people the opportunity to question the legality of any action taken.

With the presence of habeas corpus, the idea that people can just be arrested and detained without trial for their political or ideological views is history. On the same note, habeas corpus has been depicted as the bridge that prisoners can use to access their constitutional rights.

It should be noted that access to the bill of rights is critical in determining whether one has freedom or not (Azmy, 2012). Moreover, habeas corpus is very essential in ensuring that dictatorship tendencies are eliminated. Furthermore, the writ is there to ensure that due process is followed during any trial process.

Suspension of Habeas Corpus

Though habeas corpus is such a fundamental right of people in the United States, there are cases where it has been suspended. During the period of American civil war that started in April 1861, chances that normal functioning of the government would be disrupted were high (Krent, 2005). On the same note, it was almost impossible that congress could be called to session because of the state of events prevailing.

To curb the uprisings, President Abraham Lincoln ordered military to suspend the writ of habeas corpus and arrest anybody who was suspected to be rebellious. During the suspension period that lasted up to 14 February 1862, many people were arrested by the military especially in Washington and Philadelphia (Azmy, 2012). However, Lincoln later suspended habeas corpus throughout the country. It should be noted that this was the basis under which the Habeas Corpus Suspension act of 1863 was formulated.

Habeas corpus was also suspended in the Confederacy mainly to encourage economic growth in the south. Moreover, the Civil Rights Act of 1871 gave powers to the president to suspend habeas corpus incase common means were unable to regulate conspiracies against federal government ( LaGreca, 2011). President Ulysses S. Grant then used the Act to suspend habeas corpus in South Carolina in 1871. In 1905, habeas corpus was also suspended in Philippines following cases of continuous unrest.

During World War II, the Supreme Court held that suspension of habeas corpus was necessary for cases involving unlawful combatants. However, after the war it was decided that the civilian courts could function and martial law was illegal. Nevertheless, war criminals that were not brought to the U.S. could not enjoy habeas corpus as was held in the case of Johnson v. Eisentrager (1950) (Krent, 2005).

The most recent suspension of habeas corpus is contained in the Military Commissions Act of 2006 that was signed into law by President Bush. This law suspends the right of habeas corpus for any aliens held in the United States for being unlawful combatants. The law gives the president powers to suspend the writ of habeas corpus whenever necessary.

It’s Applicability to War on Terror

In the case of Hamdi v. Rumsfeld (2004), the Supreme Court held that under no circumstances will any American citizen be denied access to habeas corpus (Gregory, 2013). It was specifically outlined that even when a citizen is suspected of being an enemy combatant, the writ of habeas corpus was an irrevocable right.

However, the problem is on the application of habeas corpus to the war on terrorism. The Presidential Military Order of 13 November 2001 has been criticized by many people, especially civil rights activists, for giving the president powers to arrest and detain people just on suspicion. This order can be misused to detain people without the opportunity of being tried in any court or even being represented by any person.

It should be known that non-citizens are also human beings and should have access to various rights just as citizens do. Whether a person is a citizen or not, it is our duty to ensure that proper procedures are followed to give them fair trial.

Though we should not assume the gravity of terrorist activities to our nation, it does not mean that any non-citizen arrested for connection with terrorism is automatically guilty (Gelzer, 2012). Denying prisoners their right to habeas corpus, whether they are aliens or not, is tantamount to disregard of basic human rights. Consequently, much as we have to fight against terrorism, we should do so within the provisions of the law.

As outlined in the Antiterrorism and Effective Death Penalty Act of 1996, deterring terrorism and justice to victims should be achieved through effective penalties. It would be discriminatory to arrest two people, a citizen and an alien, for the same crimes and subject them to different processes. As was held in Hamdan v. Rumsfeld (2006), all detainees including those in Guantanamo Bay should have a right to habeas corpus (Alexander & Richmond, 2007).

The Supreme Court’s Interpretation of Habeas Corpus

Following the detention of people thought to be enemy combatants in Guantanamo Bay, many concerns have been raised regarding how those people should be treated and whether habeas corpus is applicable.

The result of these concerns is depicted in the case of Boumediene v. Bush (2008). Majority Justices held that habeas corpus also applied to detainees in Guantanamo Bay. Giving the example of Channel Islands, majority Justices argued that habeas corpus had been historically applied to aliens and territories outside the borders of United States where U.S. had control.

On the same note, the example of Ireland was given to show why habeas corpus should be applied to detainees in Guantanamo Bay (LaGreca, 2011). They argued that English habeas corpus was applied to Ireland because Ireland was under de facto English control despite it being a sovereign territory. In this regard, the Court held that the U.S. had a de facto control over Guantanamo Bay. Consequently, habeas corpus could not be suspended on people detained in Guantanamo Bay.

Majority Justices also pointed out that the Antiterrorism and Effective Death Penalty Act did not suspend habeas corpus but just limited its application to people who have already been tried in a court of law. On the contrary, Military Commissions Act suspended application of habeas corpus to people who have not been given a fair trial to determine whether they are guilty (Gregory, 2013).

It was the view of majority that congress should be able to give an alternative way through which prisoners can be able to prove that they have been wrongful detained in case habeas corpus is suspended. There always should be a way through which mistakes can be corrected. In the majority’s view, detainee treatment Act failed to provide the alternative.

Nevertheless, those Justices who were opposed to majority argued that Cuba was a sovereign territory and American judicial system could not be applied there. They referred to the case of Johnson v. Eisentrager where habeas corpus was suspended (Gelzer, 2012).

Moreover, they argued that it is practically difficult to collect substantial evidence against an alien especially in a foreign territory. In his argument Justice Scalia maintained that people released from Guantanamo Bay have gone ahead to commit the same crimes thus making it difficult to know who is a true criminal and who is not.

Habeas Corpus and the Congress

Congress is supposed to safeguard the interest of the public as a whole. Moreover, congress is tasked with the role of making legislations on behalf of the public as a whole. Consequently, it should be the role of the congress to determine when the writ of habeas corpus can be suspended. Before doing this, the congress should evaluate the prevailing circumstances to ensure that they are worth the suspension of the right.

As was depicted in the case of President Lincoln, people do not like the idea that a single person or office can have the power to determine when habeas corpus can be suspended. The constitution provides for situations under which habeas corpus can be suspended but the language used is subject to different interpretations (Alexander & Richmond, 2007). Therefore, congress should have the role of determining suspension of habeas corpus so as to ensure the interpretation used is one that put public interest first.

The Role of the President as the Commander-In-Chief

The president is the commander-in-chief of the armed forces of the country and should therefore be given some freedom to exercise his or her powers. However, the president is a human being like any other person and has various weaknesses. In this regard, if the president is given explicit powers to determine when it is fit to suspend habeas corpus, chances are that he or she might misuse these powers.

Any political uprising will automatically lead to suspension of habeas corpus and political enemies will be detained and imprisoned without trial (Krent, 2005). Therefore, though the president will need some powers to be able to defend the country as the commander-in-chief, there should be regulation on what he or she can do. Notably, the powers to suspend habeas corpus should not be vested on the president.


Habeas corpus is an inherent right that any person should be accorded. It does not mean that just because a person is suspected of a crime he or she should be stripped off the constitutional rights. The world and especially United States of America is under threat from terrorist and war against terrorism is quite essential. However, coming up with a detention center in Guantanamo Bay so that habeas corpus can be suspended is inhuman. Therefore, the war on terrorism should not be an excuse to deny detainees the right of habeas corpus.


Alexander, J. & Richmond, S. A. (2007). Administrative Discretion: Can We Move Beyond Cinder House Rules? The American Review of Public Administration, 37(1), 51-64.

Azmy, B. (2012, September 14). The Face of Indefinite Detention. The New York Times. Retrieved from

Gelzer, J. A. (2012). Of Suspension, Due Process, and Guantanamo: The reach of the Fifth Amendment after Boumediene and the Relationship between Habeas Corpus and Due Process. Journal of Constitutional Law, 14(3), 719-780.

Gregory, A. (2013). The Power of Habeas Corpus in America: From the King’s Prerogative to the War on Terror. Cambridge: Cambridge University Press.

Krent, H. J. (2005). Presidential Powers. New York: NYU Press.

LaGreca, P. C. (2011). Natural Rights in a Positive World: do Habeas Rights Extent to Non-Citizens Detained Abroad? International Journal of Public Law and Policy, 1(4), 376-383.

Latimer, C. P. (2011). Civil Liberties and the State: A Documentary and Reference Guide. Santa Barbara: ABC-CLIO.

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