Justice360° - Legal Bulletin: Habeas Corpus

Habeas corpus is a latin term meaning “you shall have the body.” It is a legal action or “writ” which individuals can use to seek relief from unlawful imprisonment. It also can be used as a final attempt to gain relief following a conviction. In simple terms, habeas corpus provides an opportunity to be released from unlawful imprisonment because the government should not be able to imprison you without telling you why you have been imprisoned and without providing you an opportunity to defend yourself.

According to Article 1 Section 9 of the United States Constitution, also known as the Suspension clause, habeas corpus can only be suspended in cases of “rebellion or invasion.” Judges may respond to a writ of habeas corpus by releasing a prisoner held by a United States entity if the imprisonment violates a law or the Constitution. Theoretically, habeas corpus is an important tool which protects anyone, citizen or non, from unlawful imprisonment.

On November 13, 2001, President George W. Bush issued a Military Order giving himself the power to detain non-citizens he deemed enemy combatants. Mr. Bush decided to hold enemy combatants indefinitely, without informing them of their alleged wrongdoings, or providing them with a lawyer or hearing. This action practically suspended the writ of habeas corpus. The Bush administration kept many of the enemy combatants off of U.S. soil (i.e. Guantanamo, Bagram) and claimed the detainees could not file writs of habeas corpus because of their location.

In 2006, the U.S. Supreme Court ruled that foreign enemy combatants could file writs of habeas corpus from outside U.S. soil. In response, the Bush administration and Congress passed a new law titled the Military Commissions Act, which legalized indefinite detentions and military commissions in place of trials. In 2008, the Supreme Court ruled that the Constitution grants habeas rights even to foreign nationals at Guantanamo, and the Military Commissions Act was unconstitutional.

President Barack Obama’s administration has embraced the legal theories of the Bush administration and has claimed that although individuals held in Guantanamo have habeas rights, individuals held at Bagram do not. On March 7, 2011, Mr. Obama formalized indefinite detention at Guantanamo and reinstated military commissions. If Mr. Obama closes Guantanamo in the future, it will only be to dismantle a facility, not the system of indefinite detention without trial. Your innocence is not a protection against indefinite detention without trial.

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