Right of Habeas Corpus


This paper seeks to illustrate clear issues regarding the Right of Habeas Corpus. It clarifies the meaning and historical evolution of Habeas Corpus. It also explains the relationship and relevance of Habeas Corpus to protection of other civil liberties and the United States’ situation during the war on terror.

The General Meaning of the Right of Habeas Corpus

The writ of Habeas Corpus protects individuals against unlawful exercises of state power (Levy et al, 2000). Habeas has guaranteed the people detained by the regime the right to question the grounds of their detention since the pre-revolutionary American history. This writ is so important to the United States that it was recently enshrined into the constitution.

The attitude of Habeas Corpus to protection of other civil liberties is clear once someone is informed about details of this writ. Farbey and Sharpe (2011) assert that the writ of Habeas Corpus is essential in preventing abuse of executive power, legitimizing the fight against terrorism and preserving America’s values. Undoubtedly, it has been proven that the writ of Habeas Corpus helps in safeguarding individual liberty against wrongful detention. Hence, the writ of Habeas Corpus is very vital in protection of civil liberties.

The Historical Revolution of Habeas Corpus

The usage of Habeas Corpus is traced back to 1215. During those times it was designed to deter kings from abusing their power in an arbitrary manner. The founders of Habeas Corpus engaged in revolution against this kind of abuse of executive power by the authorities. During King George III’s era they objected to his abuse of detention power in the Declaration of Independence.

Levy et al. (2000) stated that Habeas Corpus continued to develop in English law. In a few years the writ of Habeas Corpus was successfully exported to the colonies of England. In 1789 the United States witnessed the earliest constitutional guarantee of Habeas Corpus. It guaranteed that “the writ of Habeas Corpus shall not be suspended unless when in cases of rebellion of invasion the public safety may require it” (Rose 2008).

During the past two centuries the Habeas Corpus rights have spread to most nations all over the world. This is a result of the influence of Anglo-American law and inclusion of Habeas Corpus principles in international human rights instruments. Recent reports indicate that at least sixty national constitutions contain an express right to Habeas Corpus. There are only four countries that prohibit suspension of Habeas Corpus.

Examples of Suspension of Habeas Corpus in the U.S. History

Wert (2011) reveals that the writ of Habeas Corpus has been suspended only in exceptional occasions in the United States. This has been done mostly on a temporary basis. Habeas Corpus was suspended twice during the Civil War when Washington D.C. was in danger of the mobs which threatened to cut off supplies and troops to the Capitol. This was carried out under the able leadership of President Abraham Lincoln who allowed the imprisonment of the prisoners of war, military and suspected spies without trial. Habeas Corpus was also suspended after the Civil War when armed insurrectionists made it hard for the courts to function in the southern region.

In the recent years its suspension has been less warranted, apart from cases involving terror suspects. Human rights activists in the United States have been urging for less suspension of the writ, citing that all citizens of the United States must be protected equally without discrimination. Also, conflicting interpretations of this writ have made it impossible to arrest terror suspects in recent years. These problems can only be handled according to different levels of federal court systems.

Relevance of the Habeas Corpus to the Contemporary United States’ Situation during the War on Terror

The rights of Habeas Corpus extend to those who are not legally the United States’ citizens (Wert, 2011). Contrary to many misperceptions, these people are termed illegal or enemy combatants and have a right of Habeas Corpus. The United States has arrested people illegally in the disguise of enforcing the act of Habeas Corpus.  Rose and Addicott (2008) indicate a good example as in the case of Boumediene v. Bush, where the petitioners were detained by the Bush Administration on allegations of being enemy combatants. 

Terrorism has been a thorn in the flesh of the United States government. In protecting its citizens against this ever-present threat, the government has opted to suspend the writ of Habeas Corpus in many situations. The United States has the right to suspend the writ of Habeas Corpus when it is faced by threat of the war or terrorism.

Supreme Court’s Interpretation of the Right of Habeas Corpus

Previously the United States’ Supreme Court has reviewed the Habeas Corpus of foreign nationals detained in the U.S during armed conflicts (Savage, 2010). For example, the Supreme Court reviewed Habeas Corpus petition filed by a group of Nazi saboteurs during The Second World War. Eventually, the Supreme Court rejected the petitioners’ claim terming the lawfulness of the detainees’ situation.

In the Boumediene v. Bush case the petitioners presented a question that had not been resolved by previous cases, which related to the detention of aliens at Guantanamo (Rose and Addicott, 2008). Those petitioners were foreigners determined as enemies and were detained in Cuba at a naval station run by the United States’ army. The main question was as to whether they have the constitutional right to Habeas Corpus or not. It primarily concerned a privilege that is guaranteed by constitution and which ought not to be withdrawn except in conformity with the suspension clause.

The Supreme Court held that the petitioners had the right to Habeas Corpus. Justice Kennedy argued that the court did not have the mandate to address whether the president had the authority to detain the petitioners. The Supreme Court stated that questions regarding legality of the petitioners’ detention are to be resolved first by the district Court.

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

The president is authorized to use all appropriate and necessary forces against those persons, organizations or nations that pose danger to national security of the United States. These can be those that planned, authorized or aided the carrying out of terrorist attacks, such as the one witnessed in 2001. Hafetz (2011) asserts that the president may exercise this writ in order to prevent the United States against such individuals, organizations or nations.

The application of this act is witnessed in many instances throughout the recent history of the United States. For example, in Hamdi v. Rumsfeld, five members of the Supreme Court recognized that detention of individuals who fought against the United States in the Afghan war is acceptable as this was an exercise of necessary force permitted by Constitution. The president being the commander-in-chief and top member of the ruling government contends that those people who pose a threat to the security of American citizens, have no right to Habeas Corpus.

The Role of the Congress in Determining When Habeas Corpus can be suspended

Throughout history the United States’ congress has taken utmost care when dealing with issues of suspending the Habeas Corpus writ. For example, in the case of Swain v. Pressley, the congress made attempts to streamline Habeas relief, but not to suspend it. This case provided little guidance because this statute handed the courts broad remedial powers to secure the historical office of the writ. Through this act the congress intended to create more limited procedure involved in suspension of the writ of Habeas Corpus.

Ultimately, the constitution grants the congress the power to determine when Habeas Corpus can be suspended. For example, during the civil war the President Abraham Lincoln suspended the writ of Habeas Corpus through congress. This historical situation illustrated important role the congress played in suspension of Habeas Corpus. Clearly, the president had to have an approval of the congress for him to suspend the right to Habeas Corpus. During the Bush era, his Republican Party marshaled its members in congress to allow the president to use his power to suspend the writ of Habeas Corpus.

The Role of Supreme Court in Protecting Civil Liberties

The supreme court of the United States is assigned the role of protecting its citizens and ensuring their rights are upheld. Elsea et al. (2006) noted that the writ of Habeas Corpus faces a lot of challenges in the Supreme Court. It should pass judgments that ought to protect the citizens and also uphold the constitution. The courts should exercise due diligence and utmost care while dealing with cases involving abuse of writ of Habeas Corpus.

The Balance Between National Security and Civil Liberties

The executive authority and Supreme Court of the United States should try their best to balance the preference availed to either civil liberties or national security. Darmer and Fybel (2011) noted that both civil freedoms and national security are essential for stability and growth of the nation. Denial of civil liberties may hinge on the citizens’ freedom and rights, and this may cause upheaval against the reigning government. Besides, lack of concentration on the national security may expose citizens of the United States to attacks by foreign organizations and countries that support acts of terrorism. This has a damaging impact on the citizens.

In order to balance between national security and civil liberties, every concerned party should play its role accordingly. For example, the Supreme Court should aim at protecting the innocent citizens against abuse of Habeas Corpus by the ruling elite. The government should also have measures in place to protect its subjects against both external and internal security threats. In relation to external threat, such as risk of being bombed by terrorists, the government should use intelligence gathered from foreign intelligence bureaus to its advantage. It should also make use of recent advancement in technology by scanning all entrants into the United States’ territory.


It is evident that essential role of Habeas Corpus has been instrumental in the establishment of American law. This is despite its facing massive criticism about its abuse by the authorities as it was the case with former president George W. Bush. It has been realized that Habeas Corpus is central to the traditions and values of American society. It helps in safeguarding the individual liberties against wrongful detention and acts as a check in curbing abuses of executive power. This is very vital in fighting terrorism as witnessed in the Boumediene v. Bush case. It has also been illustrated that the writ of Habeas Corpus enhances counter-terrorism efforts by helping the United States to detain those that threaten its security through legal means.

In conclusion, it is worth noting that these misconceptions may continue to exist, but they should not be allowed to obscure the important role that this writ plays in the society. Habeas Corpus has become the most potent weapon for any country to vindicate personal liberty of its citizens or aliens. Through the above illustration it is clear that Habeas Corpus has greater impact on the security of the nation than on an individual basis.

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