Understanding Our Constitution - Part 26 - Habeas Corpus

Habeas corpus (You have the body) is a legal action, or writ, through which a person, or that of another person, can seek relief from unlawful detention. It protects individuals from harming themselves or from being harmed by the judicial system.

The US Constitution specifically included this English common law procedure in the Suspension Clause, located in Article One, Section 9:

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.

Habeas corpus serves as an important check on state courts respect of federal constitutional rights. The writ is the “fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action” Harris v. Nelson. 394 US 286, 290-91 (1969).

A writ of habeas corpus mandates than an inmate be brought to court so it can be determined whether or not that person is imprisoned lawfully or should be released from custody. A petition is filed with a court objecting to a detention or imprisonment. The petition must show that a legal or factual error occurred.

The Presidential Military Order (November 13, 2001) gave the President the power to detain suspects, suspected of connection to terrorists or terrorism as an unlawful combatant. A person could be held indefinitely without charges being filed against him, without a court hearing, and without entitlement of a legal consultant.

On October 17, 2006, President Bush signed into law the Military Commission Act of 2006 (MCA). This bill removed habeas corpus for any person determined to be an “unlawful enemy combatant” engaged in or having supported hostilities against the United States.

“...no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” §1005(e)(1), 119 State. 2742.

One day after being sworn in as President, on January 21, 2009, President Obama issued an executive order regarding the Guantanamo Bay Naval Base and the individuals held there. This order asserted that “(they) have the constitutional privilege of the writ of habeas corpus”. (An executive order is a procedural order made by the President to those in the executive branch. It does not go through the legislative process.)