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Right of Habeas Corpus

Categories: Rights

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This essay focuses mainly on the general meaning of the right of habeas corpus according to the U.S constitution, habeas relationship with civil liberties, historical evolution and the American and English traditions of the writ. Sample cases in history of suspension of freedom of habeas corpus and today’s applicability of the writ is also provided. The paper also provides and analysis of the significance of habeas corpus to the current U.S. situation in tackling terrorism. At the same time, it explains interpretation of the right of habeas corpus by the Supreme Court in United States with respect to ‘enemy combatant’ or unlawful combatants.

Finally, evaluation of various viewpoints on habeas corpus, expressed by justice of the High Court, Government leaders in other branches and analysts in both popular and academic press is given at the end of the paper. Habeas Corpus is a summon that may be issued to bring a party before a judge or court, having as its function the freeing of the party from illegal control or the citizen’s right to get such a summon.

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Habeas corpus refers to the legal guide which holds that a prisoner may not be kept in detention without just cause. Habeas writ is a request, issued to the custodian of a person under arrest (prison, official, police, and sheriff). It requires the warden to bring the charged person into court along with whatever evidence the custodian is using to validate continuing the custody (Gregory et al.

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, 2013) The American constitution grants an individual the right to question confinement before a judge. Interestingly; the infringement of the right of habeas corpus has not been the harshest of civil freedoms that have been provided to both citizens in U.S and those of other states. The right of Habeas permits a prisoner to pinpoint the guaranteed that have been during a trial broken upon hence protecting the prisoner. The history of Habeas corpus is ancient. Habeas corpus originated mainly from Anglo-Saxon common law. It came after the 1215 Magna Carta. Since then, the practice surrounding the Habeas corpus writ has evolved.

The writ from has been obliged to grant an appearance of a detained person to be brought before a judge. Originally the habeas corpus was a ‘privileged writ’ of the King and courts. However, it has evolved over time it has into a prerogative writ started by the person jailed or custodian rather than by the King and courts. The habeas corpus comes from the fact that that the government must either incriminate any accused or set him free. Compared to other civil liberties, the writ of habeas corpus serves the same purpose as freedom of speech. People are provided given the freedom to not only speak the truth, but to also stand in court to provide evidence on some innocence. As well, the entitlement to habeas corpus gives a person privilege to exercise their right to legal representation (Habeas corpus, 2010). The people who founded the constitution knew that the right of habeas corpus was crucial. From personal incidents they had an understanding on how it felt to be viewed as an enemy combatant, incarcerated indefinitely, and not given the chance to appear before an unbiased judge.

In order to eradicate this alarming tool of oppression, the Constitution founders had more resolution to save the Americans from such government abuses. (Rutherford Institute, 2013). The Habeas Corpus was codified by the congress in 1879 in the 14th section of the Judiciary Act. In the U.S history, the habeas corpus has been suspended severally. The habeas corpus has been suspended three times since the Constitution was ratified. In 1861, the first habeas corpus suspension was made. It happened in Maryland state and some regions in Midwestern. It was done by the then President Abraham Lincoln in reply to riots and local militia force action, as well as the threat that Maryland would split from the Union. Through this suspension Lincoln permitted the detention of militia members, war prisoners, and alleged traitors to be kept in captive for the duration of the civil war without trial. The second suspension occurred in the early 1870s during Reconstruction in response by President Ulysses S. Grant to civil rights violations by the Klan of Ku Klux. It was then restricted to nine counties in South Carolina.

President Bush also suspended the right of habeas corpus on 17TH October, 2006. The president passed a given law that suspended the right of habeas corpus to individuals that the government viewed as enemies in the fight against international terror. Several criticisms resulted from this with the law being accused of failing to determine who is and who not any “enemy combatant” is (Walker, 2006). The habeas corpus is crucial to the contemporary U.S. situation in the war on terror. In tackling war and terror, people are arrested, and the right of defendants to be charged for war or terror crimes should be put into consideration. The suspects ought to be tried for that crime in a timely manner. The government must justify detention of any person under the right of habeas corpus. They should provide proof of keeping the person under custody. Failure to provide evidence, they must set the captives free. Nevertheless, a controversy occurs on whether the government can simply detain the war/terror suspects for long durations of time as “enemy combatants” without charging them with a particular crime.

For years, the importance of the right of habeas corpus has constantly been confirmed by the U.S. Supreme Court. However, there exist some disagreements when it comes to how the court makes an interpretation of the right of habeas corpus with consideration of enemy combatants or unlawful combatants. U.S highest court has come into criticism when it comes to the rights of habeas corpus of enemy combatants. First, the court does not provide perfect or standard definition of who is any enemy combatant and who is not. The court has held contradictory analyses of the Constitution and of actions to be pursued in the case of rights of habeas corpus to illegal combatants. The federal and military court organizations have been given a mandate to handle such case. The 5-4 ruling in Boumediane v. Bush provides a clear scenario of how the Supreme Court interprets the right to habeas corpus. From the rulings of cases in this scenario, even the “illegal enemy combatants” held in Guantanamo had constitutional right to habeas corpus.

In the Guantánamo cases, the government was of the opinion that non-citizens as enemy combatants outside the country have no rights of habeas corpus that the Supreme Court opposed. The Supreme Court held that noncitizens detained by American government in territory over which another country have any rights under the American Constitution. The Supreme Court abides with the constitution that; the habeas corpus freedom shall not be suspended, except in cases of revolution or invasion of the safety of the public. The president as the commander in chief has the power to make effectual use of bestowed forces. The Suspension Clause is not applicable to the President. However, for other reasons the policy of incidental powers does in the Constitution. He can only do so in actual theatre of war. The president does not have the authority of setting up hearings for the trial and sentence of offenders, whether armed forces or ordinary citizens. The only time he/she can do that is through the sanction of Congress and in cases of taking necessary controls. The congress plays a major role in suspension of the writ of habeas corpus.

The Constitution predominately gives powers to the Congress to suspend the habeas writ. It has the power to suspend it through affirmative action. The congress can also suspend the writ through an express delegation to the Executive. The Executive is not authorized to suspend the writ of habeas corpus. Such suspension can occur in cases of civil war when state prisoners are held in custody violation of the federal law (Latima, 2011). The Supreme Court plays an important role in the protection of civil liberties, including the judicial philosophy. If the Supreme Court believes that the acts of the elected branches in judiciary violate the Constitution, it has the power to overturn them. By so doing, the Supreme Court can attempt to prevent the selected branches from infringing civil liberties. One such scenario is the Boumediene v. Bush. In this case, through its laws, the Supreme Court suspended the privilege to habeas corpus for persons who were considered to be illegal combatants in the war on terror. Such actions are the manifestation of the role played by Supreme Court in fulfilling the role of protecting civil liberties.

There is a very huge paradox when it comes to looking at civil liberties and harmonization with the state security (Brysk, 2007). For example, detaining a terror suspect for years seems fit for the state but at the same time unconstitutional. In the fight against terror, striking a balance between the liberties of individuals and a call for effective investigation is not easy. It is a very difficult balancing act. In the quest to disrupt and deter terrorism, protection of the civil liberties and the constitutional rights of all Americans is required.

One cannot achieve each without the other and they must be done both and do them very well. In summary, there is need of proper understanding of the habeas corpus and the constitution as well. Since the enactment of habeas corpus Clause has been a center of controversies day in day out. It is the high time the issue is taken keenly and solved once and for all. Apart from proper understanding of the habeas corpus, amendment should be done to factor in all stakeholders and reduce the criticisms.


  1. Habeas corpus: From England to empire. (2010). Cambridge, Mass: Belknap Press
  2. Gregory, Anthony. 2013. The power of habeas corpus in America: from the King’s Prerogative to the War on Terror
  3. Latimer, C. P. (2011). Civil liberties and the state: A documentary and reference guide. Santa Barbara, Calif: Greenwood In Brysk, A. (2007). National Insecurity and Human Rights: Democracies Debate Counterterrorism. Berkeley, Calif: California University Press
  4. Walker, R. S. (2006). Habeas corpus writ of liberty: English and American origins and development ; being a reprint of The Constitutional and Legal Development of Habeas Corpus as the Writ of Liberty, together with 2006 revised edition, The American Reception of the Writ of Liberty. S.l.: BookSurge

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Right of Habeas Corpus. (2016, May 26). Retrieved from

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