What You Should Know About Habeas Corpus

Document Date: April 20, 2007

What is Habeas Corpus?
The “Great Writ” of habeas corpus is a fundamental right in the Constitution that protects against unlawful and indefinite imprisonment. Translated from Latin it means “show me the body.” Habeas corpus has historically been an important instrument to safeguard individual freedom against arbitrary executive power.

Why Did Congress Pass the Military Commissions Act?
In June 2006, the Supreme Court found in Hamdan v. Rumsfeld that military commissions at Guantanamo created by President Bush were invalid. The court said that the rules violated Common Article 3 of the Geneva Conventions regarding the treatment of detainees being held indefinitely.

After the decision, President Bush asked Congress to pass legislation that would make the military commission trials legal and strip detainees of their due process habeas rights — which they did by passing the Military Commissions Act right before November 2006 elections.

How Does the Military Commissions Act Take Away Habeas Rights?
Section 6 of Military Commissions Act strips any non-citizen, declared an “enemy combatant” by any president, of the right to be heard in court to establish his or her innocence, regardless of how long he or she is held without charge. This habeas-stripping provision applies to the detainees held in U.S. custody at Guantanamo Bay and elsewhere. It violates the Constitution and basic American values.

Is it Constitutional to Strip a Person of Their Habeas Rights?
No, Section 6 of the Military Commissions Act is unconstitutional and will eventually be struck down by the U.S. Supreme Court. Several cases challenging the law are already working their way through the courts.

The establishment of the writ of habeas corpus, the prohibition of ex post facto laws…are perhaps greater securities to liberty and republicanism than any [the Constitution] contains.” – Alexander Hamilton, Federalist Paper No. 84

What Can I Do?
Two bills have been introduced in Congress that would restore habeas corpus rights — the Restoring the Constitution Act of 2007 (H.R. 1415, S. 576) and the Habeas Corpus Restoration Act (H.R. 1416, S. 185). Help us: Urge members of Congress to cosponsor and support this vital legislation and spread the word in your community:

  • Come to DC in June! The ACLU is hosting a week of action, to demand that Congress defend the Constitution and protect what makes us Americans by restoring due process and habeas corpus. The more people we have in DC, the louder our voice will be! Look for more details at
  • Write a letter to the editor about the elimination of Habeas Corpus and the other problems in the Military Commissions Act. Get the word out through newspapers, newsletters, blogs, personal websites, academic publications and more.
  • Take Action through ACLU Action Alerts. Join the ACLU Action Network to find out important ways that you can take action to help restore the Constitution. You’ll keep up to date on all the latest news and information as well as other exciting opportunities to take action and restore our Constitution such as national conference calls, town halls, and web-chats. Sign up now >>
  • Host a House Party and invite all your closest friends. Rent the movie “Road to Guantanamo” or a similar show, start the conversation and encourage your friends to do their part to restore the Constitution. For background on the issues, go to /habeas
  • Keep the discussion going! Talk to your friends, neighbors, family and others in your community about the problems in the Military Commissions Act and let them know they can act to restore the Constitution. Forward ACLU Action Alerts to your friends, family, colleagues and neighbors. Communicate with your local community, religious and other leaders to request that they sign up for ACLU Action Alerts and take action.