Habeas Corpus in the 21st Century

Habeas Corpus is one of the most long standing traditions of free governments. In Latin, it means “you should have the body.” In modern legalese, it means that a defendant of a crime has the right to challenge their captivity. Habeas Corpus has been part of the English common law since 1305. This right has been part of American tradition since the first European settles left the shackles of their oppressors and took an arduous voyage in hopes of a better life.

The writ of Habeas Corpus was so important that the founders specifically mentioned it in the first article of the United States Constitution, which states, “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.” This basic legal right has been in practice since the Civil War in 1861.

However in the last decade, the federal government has taken actions to further strengthen its authoritarian hold over citizens by limiting the use of Habeas Corpus and eliminating it in some cases.

Congress passed the Anti-Terrorism and Effective Death Penalty Act of 1996 which was the first assault in recent memory on Habeas Corpus. The act placed a one year deadline and statue of limitations on the federal writ. The act also gave the federal judiciary a great amount of power to review previously made state Habeas Corpus decisions.

Shortly after the September 11th attacks, an executive order was made that allowed the President to detain citizens suspected of terrorism related activities to be arrested as enemy combatants. Enemy combatants could be held indefinitely without charges or a court hearing. Fortunately in the case of Hamdi v. Rumsfield, the Supreme Court reconfirmed the right of Habeas Corpus.