The Right of Habeas Corpus in the Context of the War on Terror

Habeas corpus is associated with the Americans’ main civil rights and liberties because this writ protects US citizens from illegal detention. The right of habeas corpus has a long history, and it serves to support the liberties promoted with the US Constitution.

However, the war on terror developed in the United States during many years affects all the aspects of the people’s life, and the relevance of habeas corpus is often discussed as questionable by experts because this right does not work in situations when “enemy combatants” and “illegal combatants” are detained (Bradley, 2010, p. 140).

Although the postulates of habeas corpus are discussed as guarantees of protecting individual liberties, the US approaches to the war on terror illustrate the violation of the writ, and the postulates of habeas corpus should be integrated into the process of combating the terrorists; thus, to understand the problem, it is necessary to discuss the writ’s history, the examples of habeas corpus suspension, the relevance of the writ to the contemporary situation, the US Supreme Court’s interpretation, and several perspectives related to the issue.

The Historical Evolution of Habeas Corpus in the English and American Traditions

Habeas corpus plays a critical role in protecting the civil rights of US citizens because this writ provides a person with the opportunity to avoid the illegal detention. If there is no evidence to support the prisoner’s guilt, it is possible to release the person and state his or her right of individual liberty (Levin-Waldman, 2012, p. 312).

While focusing on the historical evolution of the writ, it is important to note that habeas corpus refers to the English legal tradition.

In England, the Habeas Corpus Act was passed in 1640 as the statement of the individual liberty right and as an important result of prolonged struggles between the British Parliament and the king. In the United States, the constitutional liberties were interpreted from a new perspective in 1867, when the US Habeas Corpus Act was passed (Films on Demand, 2006).

Today, the right of habeas corpus plays a significant role in relation to the US Constitution because the writ guarantees the focus on the prisoners’ civil rights and liberties.

As a result, the US authorities of the 19th century focused on providing constitutional guarantees related to the writ and chose to prohibit the possible suspension of habeas corpus (Hawke, 2007). The right of habeas corpus is closely associated with the Americans’ civil liberties because the imprisonment of a non-guilty person can be discussed as a direct violation of his or her rights.

Suspension of Habeas Corpus

The problem is in the fact that in spite of the direct prohibition to suspend the writ of habeas corpus, there is the remark in Article I, Section 9, which allows the wide interpretation of the right. Thus, it is stated in the article that the writ can be suspended when there are situations of “rebellion,” “invasion,” or when the public requires the suspension because of the threat to safety (Niday, 2008, p. 106).

That is why there are critical moments in the history of the United States when the suspension of habeas corpus was observed. The first remarkable moment is the Civil War. While focusing on suspending the writ, Abraham Lincoln provided reasons for indefinite arrests of conspirators.

Lincoln referred to the unique situation associated with the wartime and noted that the suspension of habeas corpus was necessary to contribute to the safety of the nation (Ward, 1990).

Although the most vivid examples of suspending the writ are characteristic for the period of the Civil War, there are cases that are applicable to the present days.

The problem is in the fact that the ongoing war on terror is also developed according to the principles of protecting the public’s safety. As a result, the authorities are able to justify the suspension of habeas corpus while accentuating the necessity to fight against the enemies of the United States.

The example of how this approach works is the case Hamdi v. Rumsfeld of 2004. Hamdi was declared to be an enemy combatant, and as a result, he was deprived of the opportunity to access the court system of the United States (Niday, 2008, p. 105-107). The case provoked debates on the issue while revealing many challenges associated with the work of the writ during wartime.

The Relevance of Habeas Corpus to the Contemporary Situation in the United States

The war on terror has developed actively, and the process is associated with a range of legal procedures. One of the first steps in developing the principles of the war on terror was the focus on such terms developed by the Administration of Bush as the “enemy combatant” and the “illegal combatant” (Niday, 2008, p. 102).

The development of the terms meant that all the persons suspected by the US military leaders to be enemy combatants were arrested and interrogated without focusing on the right of habeas corpus. On the one hand, the use of definite rules in relation to enemy combatants and illegal combatants increases the flexibility of the process of interrogation and provides quick access to the necessary information.

On the other hand, the lack of investigations, illegal interrogation, and detention can be discussed as the features of the suspension of habeas corpus (Dealy, 2007, p. 1071).

From this point, the relevance of habeas corpus to the contemporary situation in the United States is rather questionable in relation to the context of the war on terror and necessity to receive as much information from enemy combatants as possible. If the writ works in most cases, the development of the war on terror changes the situation in relation to the enemy or illegal combatants to guarantee the safety of the nation.

The US Supreme Court’s Interpretation of the Right of Habeas Corpus with Respect to Enemy Combatants

There is no single interpretation of habeas corpus in the US Supreme Court because of the issue’s aspects. That is why, while discussing such cases as Boumediene v. Bush, justices are inclined to deliver the opinion with the focus on the majority.

On the one hand, such an approach is rather controversial and conditional. On the other hand, it is the only way to promote constitutional rights in the court. Thus, stating that the suspension of habeas corpus is unconstitutional in relation to Boumediene v. Bush, the 5-4 majority drew the public and authorities’ attention to the problem (Boumediene v. Bush Supreme Court Case, 2007).

Nevertheless, the promotion of habeas corpus for all the war detainees can lead to destabilizing the discussion of concrete cases and to additional threats to the national security (Bradley, 2010, p. 139). The focus should be on the adequate substitute for the rights of habeas corpus.

Perspectives on the Topic of Habeas Corpus and the War on Terror

In order to understand the relevance of habeas corpus to the situation of the war on terror developed by the United States, it is necessary to focus on different visions of the role of the President, Congress, and the Supreme Court in the process. The role of the President as the Commander-in-Chief in developing the war on terror is critical because the decision of the President determines the course to choose.

The focus of the President on proposing the concept of “enemy combatants” provoked the changes in the legislation process (Anderson, 2006, p. 4). Thus, in relation to habeas corpus, it is known that the President has the right to assess the threat to the national security and propose the alternative decision such as the suspension of the right of habeas corpus in critical cases.

In this situation, Congress can support or oppose the decision of the President in stating the cases when habeas corpus can be suspended. While focusing on many cases of “enemy combatants,” it is important to note that Congress chose to support the President because of the necessity to protect the national security and balance the powers in the country (Dealy, 2007, p. 1075).

To avoid stating the unique independent authority of the President in discussing the situation with “enemy combatants,” Congress chose to share the responsibility for suspending habeas corpus during the period of the war on terror.

The problem of habeas corpus in the context of the war on terror is very controversial, and even the Supreme Court chooses to share different views depending on the situation and the concrete case.

As a result, it is rather difficult to state that the Supreme Court can serve the protector of civil liberties in the case of opposing the views of the President and Congress (Bradley, 2010, p. 140; Films on Demand, 2006). That is why more attention should be paid to promoting the postulates of habeas corpus in the Supreme Court, which should be independent of the impact of the other forces.

While focusing on the personal philosophy, it is important to note that although the national security is the priority in the context of the war on terror, the principles which serve to promote civil liberties should be followed strictly.

The violation of the norms of habeas corpus can be discussed as the step to violating other people’s rights and freedoms. That is why much attention should be paid to supporting the balance between the forces (Cole, 2003, p. 2565). However, the focus on habeas corpus can prevent from making rational decisions while coping with terrorists. Thus, the reformation of the approach is the necessary condition to address the problem.


The US citizens rely on the postulates of habeas corpus as the main writ to protect their civil rights and liberties. In spite of a long history, today habeas corpus is discussed as a controversial right which can prevent the US authorities from promoting the ideals of the national security.

The current war on terror makes the President of the United States and Congress unite in discussing the aspects of the issue. In this situation, it is important to refer to the role of the Supreme Court in regulating the debates.

The appearance of the notions of “enemy combatants” and “illegal combatants” means that it is important to propose an effective substitute for habeas corpus which can respond to all the problems associated with the writ and address the human rights and freedoms.


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Bradley, C. (2010). Clear statement rules and executive war powers. Harvard Journal of Law and Public Policy, 33(1), 139-148.

Cole, D. (2003). Judging the next emergency: Judicial review and individual rights in times of crisis. Michigan Law Review, 101(8), 2565-2595.

Dealy, J. D. (2007). Subordination of powers: Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006). Harvard Journal of Law and Public Policy, 30(3), 1071-1084.

Films on Demand. (2006). [Video segment]. In Judicial Opinions: The Supreme Court Justices.

Hawke, A. (2007). . National Public Radio.

Levin-Waldman, O. M. (2012). American government. San Diego, CA: Bridgepoint Education, Inc.

Niday, J. (2008). The war against terror as war against the Constitution. Canadian Review of American Studies, 38(1), 101-117.

Ward, G. C. (1990). [Series episode]. In K. Burns, The Civil War: Episode 1 – The Cause (1861).

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