You’ve probably heard the term “habeas corpus” thrown around in cop shows and movies, or the big legal debate in the news about the concept, but what does it really mean, and why is it so important?

Definition 

Habeas Corpus is Latin for “that you have the body” or “show me the body,” and functions as legal shorthand from a judge to a corrections officer that the person in custody must be produced in a court room so the court may determine if they are being illegally imprisoned.  

So, a writ, or an order issued by a legal authority, of habeas corpus is used to bring a prisoner or other detainee before a judge to determine if they are being unlawfully detained.  A habeas petition proceeds as a civil action against a warden or jailer and can be used to examine extradition processes, the individual’s bail, and the jurisdiction of the court.   

The right of habeas corpus essentially protects a prisoner’s right to indicate whether or not their constitutionally guaranteed rights to fair treatment during a trial have been infringed upon. This concept originated in the 1200s as part of the Magna Carta, which stated, “No man shall be arrested or imprisoned…except by the lawful judgment of his peers and by the law of the land.” 

Invoking habeas is a two part process. In a petition for habeas corpus, a prisoner raises doubts about the legality of their imprisonment. If that petition sufficiently demonstrates their imprisonment is dubious and requires examination, a judge will then issue a writ of habeas corpus to have the prisoner physically brought to court. 

Controversy

The U.S. government stirred quite the debate when after 9/11 and the War on Terror, President George W. Bush’s administration and Congress determined it necessary to repeal the right to habeas corpus. The Military Commissions Act was passed in 2006 and reversed the guarantee of habeas to all people detained by the U.S. government. The Act removed any court’s ability to hear a petition of habeas by anyone deemed an enemy of the U.S. government. 

Again, the Act strips any non-U.S. citizen deemed an enemy of the country of their right to be heard in court to establish their innocence. This suspension of habeas most notably applied to Guantanamo Bay detainees, considered to be perpetrators of anti-American terrorism.

In the summer of 2020, habeas was suspended in several New York City metro area counties (Manhattan, Bronx, Brooklyn) amid an uptick in mass arrests during Black Lives Matter protests. A judge agreed to a request by the NYPD to allow for the indefinite detention of those arrested for violating the curfew the city put into place during unrest.

Importance

The concept of habeas corpus may seem antiquated because governments aren’t known to spirit people to secret prisons. However, it’s the definition of habeas corpus itself that makes the thought of illegal imprisonment seem far-fetched to many. 

Habeas Corpus has traditionally been an important instrument to safeguard individual freedoms against overreaching government power. Without habeas, a person could be detained unlawfully without recourse for securing their release. 

Critics of the 2006 Military Commissions Act argued that the Act’s clause stripping enemy detainees of habeas is unconstitutional. This clause was eventually overturned by the Supreme Court.