Article 1, Section 9, Clause 2: Habeas Corpus
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.
The writ of habeas corpus, sometimes called the Great Writ, is one of the oldest and most important procedural safeguards in the English legal tradition. Literally translated as “you have the body”, it is a court order requiring an official to bring a detained or imprisoned person before the court to determine if that person’s detention or imprisonment is lawful. Any person acting on behalf of the prisoner may petition the court for such a writ, and not just the prisoner himself, as a protection of the rights of a prisoner held incommunicado.
The guarantee of habeas corpus comes with a glaring loophole: The clause allows for the possibility of suspending the writ, and allowing the government to detain persons at its pleasure without being answerable to the courts, under circumstances of rebellion or invasion and if the public safety requires it. We illustrate with three sets of court cases.
The first occurred during the American Civil War. The secession of the southern states was a clear act of rebellion, and Lincoln proceeded to suspend the write of habeas corpus in Maryland, a border state where slavery was legal and where there was considerable support for secession. The Maryland legislature tried to split the difference by voting to remain in the Union while simultaneously voting to cut its rail lines supplying the Union armies being assembled around Washington, D.C. Congress was not yet in session, and Lincoln acted unilaterally. In Ex parte Merryman, Justice Roger Taney ruled that only Congress could suspend the writ of habeas corpus. Lincoln ignored the decision, and it remains controversial today. Later Congress acted to suspend habeas corpus, but was unable to reach consensus on a bill doing so until 1863. In Ex parte Milligan, the Supreme Court ruled that habeas corpus could not be suspended where regular civil courts were in operation.
The second case came in 1942. Eight Nazi saboteurs had been landed by submarine on the East Coast for the purpose of sabotaging critical industries. In Ex parte Quirin, the Supreme Court denied habeas corpus, ruling that unlawful combatants were subject to trial by military tribunals rather than civilian courts.
The third is Hamdi v. Rumsfeld (2004), in which the Court ruled that habeas corpus could not be suspended for a U.S. citizen who was detained as an enemy combatant.