Habeas corpus, also known as “The Great Writ” refers to a centuries-old legal concept, fundamental in any democracy. This Latin term, literally meaning, “holding the body”, refers to a legal action that a person can bring in order to seek relief against arbitrary and unlawful detention.
Habeas corpus represents the idea that the king or the President, may not, at his whim, detain whomever he wants without allowing the detainee the opportunity to stand before a fair court to hear the charges against him or her and to have an opportunity to answer the charges. Filing a petition for a writ of habeas corpus is a legal challenge to the government’s ability to detain an individual. It is brought against the person(s) responsible for holding a detainee and requires that s/he produce the detainee along with the reasons that this person is being held. The petition challenges the legality of the detention based on a legal or a factual error. So, for example, the error could be that the detention violates the Constitution. Or, the petition could assert that the detainee was incorrectly identified and the government arrested the wrong person. The court then decides if the person is being held lawfully or if the detainee ought to be released.
As a legal concept, habeas corpus is centuries-old. Habeas rights are typically traced back to the Magna Carta of 1215 and have since become a cornerstone of democratic governance and of international human rights law. In the U.S., the Constitution requires that habeas rights can only be suspended under very limited circumstances: “the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
President Bush tried to suspend habeas when he issued a military order entitled, Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism. He declared the right to indefinitely detain individuals that he claimed were suspected of having links to terrorism as “unlawful enemy combatants”. In violation of international and Constitutional law, he asserted that these detainees could be held forever without legal counsel, without knowing what they were accused of doing, and without ever seeing the inside of a courtroom.
Over the course of years, the Bush administration held over 700 such designated “unlawful enemy combatants” on a U.S. detention camp in Guantanamo Bay, Cuba. All the while, in American court rooms, a vigorous legal battle over the legality of the detentions has ensued. Most recently, the U.S. Supreme Court in Boumediene, held that those held at Guantanamo Bay have the right of habeas corpus and can bring such claims in U.S. federal court.