"War on Terror" Human Rights Issues


Detainees


Habeas Corpus and Detainees


In the original Latin, habeas corpus literally means “holding the body.” People detained by the United States, whether in the United States or outside the United States being held in US custody, are usually permitted to file a petition for a writ of habeas corpus with the court. The writ of habeas corpus is essentially a legal challenge to the government’s ability to detain the individual.

The right to seek a writ of habeas corpus is considered an integral feature of democratic and constitutional governance and of international human rights law. Historically, this right to seek judicial review of detention can be traced to the Magna Carta of 1215 and the more recent Habeas Corpus Act of 1689.

A petition for writ of habeas corpus challenges the legality of an individual’s detention. The petition must show that the detention is based on a legal or factual error. For example, the petition may argue that the detention is in violation of the United States Constitution, a federal statute, or a U.S. treaty obligation. Or, the petition may assert that the detainee has been incorrectly identified as a suspect. If the court agrees, it will grant the writ of habeas corpus and the detainee must then be released.

A habeas corpus petition may be filed by someone in detention or by someone acting on the detainee’s behalf. This can include family members or agents. This is known as “next-friend” standing. To succeed, there must be a “significant relationship” between the purported “next-friend” and the detainee such as a familial or spousal relationship. Otherwise, the petition will be dismissed for lack of standing, meaning that a person does not have a significant enough interest in the case to bring it before the court.

In the United States, there is a limited ability to suspend habeas corpus relief. Article I of the U.S. Constitution states, “[t]he 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.” During the Civil War, President Lincoln suspended habeas corpus. His decision was challenged by Chief Justice Roger Taney as unconstitutional in the absence of congressional authorization. In response, Congress subsequently authorized the suspension of habeas corpus for the remainder of the war.

The Supreme Court arguments on the detainees in Guantanamo Bay will address the issue of whether or not the detainees are permitted to petition for a writ of habeas corpus in US courts. There is precedent for people detained in situations of armed conflict using this provision of the law to challenge their detention in US courts, and many of the briefs filed with the Supreme Court refer to those decisions.