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The Rights of Habeas Corpus in the Context of the War on Terror

Updated on July 13, 2017

Habeas corpus protects our basic rights of not being detained without knowledge of why we are being detained and our right to a speedy and fair trial. Without the protection of habeas corpus, a person could be detained indefinitely, even for life, without ever going to trial, and the person may be innocent. Habeas corpus encapsulates basic freedoms. Without habeas corpus, dictatorial leadership could take control. When the U.S. refused habeas corpus to detainees, then the U.S. is not showing itself to be any better than terrorist countries. Habeas corpus makes it possible to determine if detainees are guilty of being terrorists or enemy combatants. This is important. If a detainee is found to be guilty of being a terrorist or an enemy combatant, then they should be prosecuted to the full extent of the law, and right away. If a detainee is found to be not guilty of being a terrorist or enemy combatant, then that person should be released right away. It is of utmost importance to maintain security for our people and our country, and at the same time, maintain liberty for all innocent people. Security and liberty are very important. Habeas corpus, which began in Britain in 1679 and was later adopted by the United States, has been accepted and has been denied during war times by U.S. war time presidents.

Historical Evolution,

English and American Traditions of Habeas Corpus

The English Habeas Corpus Act of 1679 was passed by the British government for the better securing of liberty of the subject and the prevention of imprisonment beyond the seas. “For the prevention whereof, and the more speedy relief of all persons imprisoned for any such criminal or supposed criminal matters; be it enacted by the King’s most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority thereof.” (Revolutionary War and Beyond, 2014)

Today, habeas corpus is used in the United States. Law professors say that it strengthens the moral psyche of its residents. Habeas corpus does not hold that much significance since there are very few habeas corpus applications. During World War II, the habeas corpus was not allowed for people of German descent because they were considered to be spies. “Today, during the war against terrorism, people with Arabic links are threatened by the lack of opportunities when it comes to habeas corpus.” (Habeas Corpus Brief History, 2011)

Suspension of Habeas Corpus and Applicability to the Present

On April 27th, 1961, during the beginning of the Civil War, President Lincoln violated the Constitution by suspending the privilege of habeas corpus. This is a right that dates back to English common law, which predates our Constitution. In 1861, John Merryman was captured and imprisoned without charge. He was denied, legal counsel. Next, Judge Taney stepped in and ordered a Writ of Habeas Corpus for Merryman. Lincoln did not honor this order from Judge Taney. In response to Taney, Lincoln wrote: “Are all the laws but one to go unexecuted and the government itself go to pieces lest that one be violated.” The Civil War continued, and more arrests were made. Lincoln suspended the Writ of Habeas Corpus as far north as Maine. Then, on March 33, 1863, Congress authorized President Lincoln to suspend the Writ of Habeas Corpus. (National Park Service, 2014)

“In the case of Ex Parte Merryman, Lincoln effectively ignored a judicial opinion. John Merryman, who was a pro-Confederate lieutenant in the Maryland Militia, was involved in recruiting and training soldiers for the Confederacy. He was also involved with cutting telegraph wires and blowing up rail lines on bridges. Because Maryland was close to the nation’s capital in Washington, which was under constant threat, Lincoln declared martial law there. Union soldiers arrested Merryman for treason. Through an attorney, he requested a Writ of Habeas Corpus. (Levin-Waldman, 2012a)

The Habeas Corpus Restoration Act of 2007 was a bill that passed the U.S. Senate Judiciary Committee. This bill was approved to restore the Guantanamo Bay prisoners the right to petition for habeas corpus in a United States court. This right had been taken away from then in 2006 with the bill named Military Commissions Act that Congress had passed. The Habeas Corpus Restoration Act gives persons the rightful access to their liberties, such as the liberty to contest any arrest. “Humans regardless of their status, war prisoners or enemy combatants, should never be incarcerated without solid and legal proof.” The restoration of habeas corpus in military courts is considered a huge victory for human rights. (Habeas Corpus Restoration, 2011)

Habeas Corpus means ‘you may have the body.’ It is a legal action that is derived from the English common law. The first use of habeas corpus was during the rule of King Edward I. The basis of the writ was explained by the fact that the king had the right to know if the liberty of any of his subjects was being restrained by law enforcement parties.

The first written account of a habeas corpus procedure was codified in the Habeas Corpus Act of 1679. The procedure’s principles have not changed much since that time. The habeas could be issued by a court in the name of the ruler or in the name of the state in modern times. The habeas corpus law brings the prisoner in front of the law system, and then his case is legally analyzed. The petition can be claimed by the prisoner or by a third party on his behalf. Habeas corpus has been mostly used since the 18th century in cases of incorrect or unlawful arrest or detention. (Habeus Corpus Information, 2011)

Since its beginning, the habeas corpus right was restricted several times in England and in the United States. Habeas corpus was threatened by the decision made during the World War I and World War II to imprison individuals without free trial. Another danger is the fact that, in England, as long as the detention of a prisoner is in accordance with an Act of the Parliament, the habeas corpus is irrelevant. The Human Rights Act of 1998 has given courts the opportunity to declare Act of the Parliament as incompatible with the Humans Rights Act in order to save the right to habeas corpus. As long as the Human Rights Act is not accepted by the government, the initiative has no effect. (Habeas Corpus Origins, 2011)

The Views of the Five Justices Making Up the Majority in Boumediene v. Bush as well as the Views of the Four dissenting Justices:

In 2002, Lakhdar Boumediene and five other Algerian natives were seized by Bosnian police. U.S. intelligence officers suspected their involvement in a plot to attack the U.S. embassy in Bosnia. The U.S. government classified the men as enemy combatants in the war on terror and detained them at the Guantanamo Bay Naval Base, which is located on land that the U.S. leases from Cuba. Boumediene filed a petition for a Writ of Habeas Corpus, alleging violations of the Constitution's Due Process Clause, various statutes and treaties, the common law, and also international law. The District Court judge granted the government's motion to have all of the claims dismissed on the ground that Boumediene, as an alien detained at an overseas military base, had no right to a habeas petition. The U.S. Court of Appeals for the D.C. Circuit affirmed the dismissal but the Supreme Court reversed in Rasul v. Bush. The Supreme Court ruled that the habeas statute extends to non-citizen detainees at Guantanamo. (Boumediene v. Bush, 2014a)

In 2006, Congress passed the Military Commissions Act of 2006. The Act eliminates federal courts' jurisdiction to hear habeas applications from detainees who have been designated as enemy combatants (according to procedures established in the Detainee Treatment Act of 2005). When the case was appealed to the D.C. Circuit for the second time, the detainees argued that the MCA did not apply to their petitions, and that if it did, it was unconstitutional under the Suspension Clause. The Suspension Clause reads that "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." . (Boumediene v. Bush, 2014b)

The D.C. Circuit ruled in favor of the government on both points. It cited language in the MCA applying the law to "all cases, without exception" that pertain to aspects of detention. One of the purposes of the MCA, according to the Circuit Court, was to overrule the Supreme Court's opinion in Hamdan v. Rumsfeld, which had allowed petitions like Boumediene's to go forward. The D.C. Circuit held that the Suspension Clause only protects the writ of habeas corpus as it existed in 1789, and that the writ would not have been understood in 1789 to apply to an overseas military base leased from a foreign government. Constitutional rights do not apply to aliens outside of the United States, the court held, and the leased military base in Cuba does not qualify as inside the geographic borders of the U.S. In a rare reversal, the Supreme Court granted certiorari after initially denying review three months earlier. The decision came to five votes for Boumediene and four votes against Boumediene. (Boumediene v. Bush, 2014c)

A five-justice majority answered yes to each of these questions. The opinion, written by Justice Anthony Kennedy, stated that if the MCA is considered valid its legislative history requires that the detainees' cases be dismissed. However, the Court went on to state that because the procedures laid out in the Detainee Treatment Act are not adequate substitutes for the habeas writ, the MCA operates as an unconstitutional suspension of that writ. The detainees were not barred from seeking habeas or invoking the Suspension Clause merely because they had been designated as enemy combatants or held at Guantanamo Bay. The Court reversed the D.C. Circuit's ruling and found in favor of the detainees. Justice David H. Souter concurred in the judgment. Chief Justice John G. Roberts and Justice Antonin Scalia filed separate dissenting opinions.” (Boumediene v. Bush, 2014d)

Relevance of Habeas Corpus to the Contemporary U.S. Situation

During War on Terror on Persons Characterized by as Enemy Combatants or Illegal Combatants:

The Supreme Court had agreed to review whether the detainees at Guantanamo Bay in Cuba could challenge in federal court their confinement by filing a Writ of Habeas Corpus. This agreement represented a rare course of action for the U.S. Supreme Court who had first decided not to take on the case of Boumediene v. Bush. (Hawke, 2007a)

The USA Patriot Act was signed into law by Bush in 2001. This act was signed with the intention of helping the U.S. government use terrorism fighting methods that others say take away individual civil liberties. (Levin-Waldman, 2012b)

In 2001, Guantanamo military tribunals were created by Executive order. In 2006, Supreme Court shot down the system. Then, in 2006, Congress passed the Military Commissions Act, which established a new system of military tribunals to hear the cases that involved Guantanamo detainees. Those cases included allegations of war crimes, and also determinations of whether or not a detainee was an enemy combatant. “Under the Detainee Treatment Act, a detainee is appealing the determination of his status as an enemy combatant or war crime conviction.” (Hawke, 2007b)

Habeas to a detainee at the U.S. Naval Base in Cuba means to have the right to obtain direct access to federal court to challenge his imprisonment. Habeas challenges the lawfulness of why and how a detainee is confined at Guantanamo. In 2005, Congress had passed the Detainee Treatment Act. This Act eliminated habeas corpus for all detainees at Guantanamo. Democrats on Capitol Hill called for Congress to restore detainees’ rights to file habeas corpus lawsuits in a U.S. federal court. Senator Arlen Specter (Pennsylvania) was the only Republican who voted for the bill that would allow detainees’ to have the right to file for habeas corpus.

The Justice Department then issued a statement that stated President Bush’s senior advisers were going to veto this bill that would give the detainees’ the right. The reason stated was that this bill would delay the process of “bringing the enemy combatants to justice.” In 1950, Supreme Court warned that “the extension of habeas corpus to alien combatants captured abroad would hamper the war effort and bring aid and comfort to the enemy.” (Hawke, 2007c )

The ruling by Bush and other Republicans was that the rights guaranteed under the U.S. Constitution, including the right to access to the high courts, covers only those individuals who are on U.S. territory and only to U.S. citizens who are terrorism suspects, and not to alien detainees who are being detained at Guantanamo. Democrats stated that removing habeas corpus is unconstitutional, that habeas corpus is important to civilized society, and by removing that right from the Guantanamo detainees, America’s moral standing has diminished. (Hawke, 2007d)

There are two other routes to the U.S. federal courts, which are the Combatant Status Review Tribunal (determines if a detainee is an enemy combatant) and the Court of Military Commissions (determines if a detainee has committed war crimes. Those decisions are then reviewable by the U.S. Circuit Court of Appeals for the District of Columbia and the U.S. Supreme Court. (Hawke, 2007e)

To be released, a Guantanamo detainee must be ruled not an enemy combatant or must successfully challenge his detention on other grounds through habeas review. If a detainee is detained on war crimes charges, he remains at Guantanamo as an enemy combatant. If the detainee is acquitted on war crime charges, he must remain at Guantanamo as an enemy combatant. If the detainee is convicted of war crimes, he remains at Guantanamo for the length of his criminal sentence, even if the other detainees are released. (Hawke, 2007f)

The Role of the President as Commander-in-Chief:

The role of the president regarding the scope of the war time president’s powers are unclear. During war time, liberty of the people is affected when they are being bombed, shot at, and captured. Justices should defer to an executive decision because the benefits of war time actions outweigh the costs to liberty. Fewer checks and balances on the war time president’s decisions. (Bradley, 2010) During war time, it is expected that a president will exercise greater authority and exude greater power. There have been times when war time presidents become almost dictatorial. Presidents have always considered their role to be that of a forceful, powerful leader during war time, quick and ready to attack. Presidents have normally considered the War Powers Act to be unconstitutional. This act gives a president the okay to fight an undeclared war for ninety days. (Levin-Waldman, 2012c)

Congress’ Role in Determining when Habeas Corpus can be Suspended:

A War Powers Act was enacted to make the president more accountable to Congress when waging war. Congress is the one who has the right to declare war as is stated in the U.S. Constitution. Congress makes the laws. It is the legislative body. Such as enacting the War Powers Act to have the president be accountable to Congress. Congress holds checks and balances on the president’s actions. Congress determines if it is lawful for the president to take away the right of habeas corpus. If a president goes against Congress when taking away a detainee’s right to habeas corpus, Congress can send go to the Supreme Court for a ruling on this action.

The Role of the Supreme Court in Protecting Civil Liberties:

Civil liberties are personal rights that all Americans can enjoy thanks to the Bill of Rights. Good examples are freedom of speech, freedom to choose your religion, and the right to assemble. Civil rights include the right not to be discriminated against and equal voting rights.

When someone takes something up to the highest court, the Supreme Court then decides if a person’s rights have been taken away. The Supreme Court rules by the Constitution. The judges follow the written laws of the framers from many years ago. The Supreme Court judges take each case and rule it according to the law. There have been many cases going in front of the Supreme Court judges, for examples, most recently for gay rights in the workforce and for the rights of gay people to marry.

States do have the right to determine some laws for their state, where the Supreme Court does not step in and decide. There are other court cases that do work their way up from being decided on in small district courts all the way up to Supreme Court.

Balance between Civil Liberties and National Security in the Context of an Unending War on Terror

It is very important that we keep terrorism out of the United States. Terrorists must be stopped. It is ideal that the United States is against terrorism and is fighting to conquer those who are terrorists. When there are terrorists, there must be a loss of some of our civil liberties, such as the loss of privacy. More and more surveillance is going on these days in the United States. It is very important and necessary for the safety of the United States people and the U.S. A balance must always be struck. This is the ideological way. A balance that does its best to ensure safety from terrorist attacks and also does not take away personal liberties or rights, such as the right to know why you are being detained or held captive, the right to a fair and speedy trial.

Habeas Corpus - Conclusion:

Since 2001, the United States has been fighting the War on Terrorism. It has brought about a necessity for a lot more surveillance and security in areas such as airports, government buildings, places where large numbers of people are gathering such as at the Super Bowl, and many other places. The Writ of Habeas Corpus was brought about to ensure that persons were not confined without being told why they were being held. Habeas corpus gives detainees the right to a fair and speedy trial. It also gives them the right to tell their side of the case, a chance to be heard lawfully. Without habeas corpus, the government could start detaining and confining more and more people indefinitely, perhaps forever. Without habeas corpus, other rights can be lost, too. When a person is being detained without habeas corpus, their rights to a fair trial are taken away, their freedom is taken away, their right to vote is taken away, their right to come and go as they please is taken away, and their right to privacy is taken away.

In the War on Terrorism and all wars, the protection of the United States is of utmost importance. Striking a balance between protection of our people and our country and the rights of detainees not being treated fairly is important. Detainees such as those captured and suspected of being terrorists or enemy combatants should be tried right away. They should have the right to habeas corpus. Not just for their rights, but also so that we may know right away if the detainees are criminals. If they are terrorists or enemy combatants, then they should be prosecuted to the full extent of our law, and if they are not, then they should be freed. Habeas corpus began in Britain, and later, was made into law here in the United States.


Boumediene v. Bush. The Oyez Project at IIT Chicago-kent College of law. (2014/04/06). Retrieved online at

Bradley, C. (2010). Clear statement rules and executive war powers. Harvard journal of law and public policy, 33 (1), 1439-148. Retrieved from ProQuest (search all) database

Habeas corpus brief history. Habeas corpus: a constitutional right. (2011). Retrieved online at

Habeas corpus information. Habeas corpus: a constitutional right. (2011). Retrieved online at

Habeas corpus origins. Habeas corpus: a constitutional right. (2011). Retrieved online at

Habeas corpus restoration. Habeas corpus: a constitutional right. (2011). Retrieved online at

References (cont’d)

Hawke, A. (2007/06/29a,b,c,d,e,f). Primer: Guantanamo detainees’ rights. National public radio. Retrieved online at

Levin-Waldman, O.M. (2012). American government. San Diego, CA. Bridgepoint Education, Inc. Retrieved online at Ashford University constellation database

Revolutionary War and beyond. (2014). Retrieved online at

The writ of habeas corpus. All the laws but one: a writ of habeas corpus. Fort McHenry, may 1861. Fort McHenry. National park service. Retrieved online at


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