Habeas Corpus and "Enemy Combatants"

By Pereira, Carolyn; Chavkin, Nisan | Social Education, September 2008 | Go to article overview

Habeas Corpus and "Enemy Combatants"


Pereira, Carolyn, Chavkin, Nisan, Social Education


Habeas corpus--"you have the body" in Latin--is an ancient privilege of English law that predates the Magna Carta and was an early power of English courts. The writ, or written order of the court, gave judges the power to command the presence of a person before the court. This power worked two ways: (1) the writ was an order for the government and the accused to appear before the court; and (2) it required the government to explain why a person was being detained. If the court was not satisfied by the government's explanations for holding a person, the judges had the power to free the prisoner. People in England believed that habeas corpus was an important protection against the government holding people as prisoners simply for political or personal reasons. (See the Elementary Lesson for an example of why the right became so important to the English.)

Although the writ of habeas corpus was not officially extended to the American colonies, the colonists themselves took it as their birthright, and following independence they included it in several state constitutions and the Northwest Ordinance of 1787. (1) It also became one of the few rights incorporated directly into the Constitution itself: "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." (2)

In addition to the Constitution, the right of habeas corpus is established in federal statute by Congress. The United States Code, the federal law, states that "writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions." (3)

Habeas Corpus during Wartime

The writ has been suspended at different times in American history. In early 1861, for example, at the start of the Civil War, President Abraham Lincoln suspended it himself, without permission from Congress. Congress later passed legislation to support his actions. However, in the case Ex Parte Milligan (1866), the U.S. Supreme Court overturned the conviction of Lambdin Milligan by a military tribunal convened in Indiana because the civilian courts were still open there and Indiana was not a war zone. Writing for the Court, Justice Chase noted that "The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances." (4) Milligan went free. (See the Middle School Lesson on Milligan for details of the case.)

During World War II, the Supreme Court ruled unanimously in Ex Parte Quirin (1942) that a military tribunal was appropriate for unlawful combatants. (5) Eight Germans, some of whom were U.S. citizens, received training in sabotage in Germany and arrived in the U.S. by submarine in June of 1942. Some of them turned themselves in to the FBI, although the FBI at first did not believe them. Eventually all were taken into custody, tried by a military tribunal, and sentenced to death. The majority of the Court argued that while Milligan was a civilian, the Germans were in the military. Six of the spies were executed. Two were returned to Germany after the war.

In 1946, the Court again held in Duncan v. Kahanamoku that a 1941 suspension of the writ by President Franklin Delano Roosevelt in Hawaii, which was not supported by an Act of Congress, was unconstitutional. (6) Significantly, both Milligan and Duncan were decided after hostilities had ended.

To insure that a situation such as the internment of persons of Japanese descent during World War II not happen again and to repeal the Emergency Detention Act of 1950, Congress in 1971 passed a federal law making explicit the protections of habeas corpus. The United States Code now says, "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress. …

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