The Habeas Corpus: What It Is, and Why We Should Care About It Today

What does “habeas corpus” mean?

A Latin phrase meaning “that you have the body,” habeas corpus is a legal concept built on a core human right that dates at least as far back as England's Magna Carta in 1215. It is a procedure that allows any person detained on a charge “without sufficient cause” to challenge their detention in court.

What does a writ of habeas corpus do?

A writ of habeas corpus, or document brought before the court, addresses the legality of the accused person’s detention by allowing them to challenge it. It serves as a protection from confinement without valid reason. As a legal procedure, a writ of habeas corpus separates a person’s wrongful detention from their alleged commission of a crime. 

Example: A person was charged with a crime but was never notified of his court date. When he failed to appear in court, the court issued a warrant for his arrest and then held him in jail without bond. It became a habeas issue, because he should have been allowed to stay out of custody while his case was pending. Ultimately, he was unlawfully detained due to court error. 

How is it foundational to American values?

Before the country’s freedom from England, people in the colonies adopted the popular idea of habeas corpus to protect individual liberties. With American independence won, the founders included “The Great Writ,” in a clause in Article I of the Constitution: “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.”

Habeas corpus informed and undergirded the new rights guaranteed by the First Amendment, like freedom of speech, assembly, religion, and more. In the new United States of America, for example, citizens were free to speak and write in disagreement with the government, gather to protest, and worship how they wished — all without the fear of being unjustly imprisoned for doing so. This has continued for 2 1/2 centuries. A human right, habeas corpus may be easily taken for granted. Yet, the founders of the Constitution knew this individual right must be documented and upheld in order to protect liberty for all. 

Elder Dallin H. Oaks explained in September of 2013 that Joseph Smith knew the importance of habeas corpus and used the writ to challenge his unlawful arrests. His wife, Emma Smith, also knew and once wrote to Illinois Governor Carlin, petitioning for her husband’s rights, reminding Carlin of the Nauvoo city ordinance stating its residents adhere to the U.S. Constitution “. . . to prevent our people from being carried off by an illegal process. And if any one thinks he is illegally seized, under this ordinance he claims the right of Habeus Corpus under section 17th. of the charter, to try the question of identity, which is strictly constitutional.”

What are possible consequences of not abiding by habeas corpus?

Without the right to habeas corpus, a person can be jailed anywhere, for any reason, and without a way to challenge their detention. The absence of habeas corpus in Russia, North Korea, and other countries results in mistreatment, disappearance, and death of those who are detained without due process. These actions defy basic human rights and lead to fear, displacement, fractured families, physical and mental health issues, hopelessness, and submission among citizens while simultaneously sustaining authoritarian governments. 

Who holds the power to suspend habeas corpus?

Article 1 of the Constitution outlines the powers of the legislative branch, including Section 9, the authority to suspend habeas corpus. Long accepted and backed by key precedents, the power to suspend habeas corpus lies with Congress and can be in cooperation with the executive branch.

What does it mean to suspend habeas corpus?

To suspend habeas corpus is to temporarily remove the privilege for a person to challenge their detainment in cases of rebellion or invasion for public safety. The application of habeas corpus protects freedom, and suspending it offers an exception to protect national security.

When has the suspension of habeas corpus occurred in the U.S.?

During the Civil War in 1861, President Abraham Lincoln suspended habeas corpus in order to detain Confederate soldiers. The public rejected the idea of executive power to impose a suspension, and Congress acted quickly by approving the suspension retroactively. This was the last time a president has attempted to call for a suspension of habeas corpus without first receiving Congressional approval. 

The suspension of habeas corpus has occurred three more times since — to control rampant rebellion by the Ku Klux Klan in South Carolina after the Civil War, in parts of the Philippines during an insurrection, and in Hawaii after the bombing of Pearl Harbor.

Why is it in the news now?

Earlier this month, White House Chief of Staff Stephen Miller said the presidential administration is looking into suspending habeas corpus to detain and deport people from the U.S. Homeland Security Chief Kristi Noem invoked invasion and habeas corpus language when answering questions before a U.S. House of Representatives Committee hearing. President Trump filed a proclamation to hire 20,000 more immigration officers in the next 60 days to enhance deportation efforts against what he is calling an invasion.

What are key concerns with suspending habeas corpus for immigration and border issues?

Invasion and emergency rhetoric: The presidential administration and many judges disagree over whether the country is under “invasion” by immigrants. President Trump’s legal team has lost all court battles using the Alien Enemies Act to justify his deportations. Meanwhile, the U.S. Homeland Security site reports a record low number of border crossings since President Trump’s inauguration, which contradicts any claims to the country being in a state of emergency or under invasion. Despite this, families continue to suffer the impacts of abrupt detentions and deportations, and more resources are being poured into deportation efforts. 

Signs of executive overreach and potential abuse of the suspension clause: Presidential administration officials have not petitioned Congress to suspend habeas corpus. This power lies distinctively with the legislative branch. In other words, even if the president were to declare the suspension of habeas corpus under the suspension clause, it would be unconstitutional unless he sought approval from Congress and they passed a bill to suspend. 

Indicator of autocratic government: Habeas corpus is recognized as a fundamental right in democratic governments. Everyone in the U.S. has the right of due process of the law before deportation, though some limitations apply. A writ of habeas corpus is part of the due process specifically guaranteed by the Constitution. A growing number of individuals, including but not limited to children born in the U.S. whose parents are from other countries, college student activists, hundreds of suspected gang members, and U.S. citizens who have spoken out against the president have been detained and deported unlawfully under the president’s orders. 

If a president suspends the right of habeas corpus, it threatens everyone — citizen and noncitizen. Denying a person of their right to challenge their detainment is serious. If a president chooses to suspend habeas corpus without approval from Congress, the president has asserted a power that violates the core of our rights of protection from government overreach. 

Article 2 of the Constitution affords specific powers to the executive branch. Winning the popular vote, which has been used as an argument in previous actions taken by the current presidential administration, cannot extend presidential power beyond what is included in Article 2 of the Constitution.

In a recent interview, President Trump was asked whether he needs to adhere to the Constitution. He replied, “I don’t know.” This statement is alarming, because the role and subsequent powers of a president derive from the Constitution — the two cannot be separated.

When citizens fear being jailed without habeas corpus protections (or due process, or rule of law, etc.), the country is no longer a democracy. It slides instead toward autocracy, led by one person with absolute power over the judicial process.

It is not too early or too late for us to aggressively defend the Constitution and its protections, such as the fundamental right of habeas corpus.

This article was written by Sherilyn Stevenson, lead writer and researcher for Mormon Women for Ethical Government.