Habeas Corpus FAQs

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.

Our nations’ Founders considered habeas corpus so important to guaranteeing our basic rights that they specifically enshrined it in Article I of the U.S. Constitution.

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.

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 the 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 have a court decide whether the person is being held lawfully or unlawfully, 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, and this fall the Supreme Court will hear two cases from Guantanamo detainees (Boumediene v. Bush and Al Odah v. U.S.). But Congress and the president created this problem by enacting the Military Commissions Act, and they should fix it – without waiting for the courts to fix it.

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. 2826, S. 185). Members of Congress should be urged to cosponsor these vital bills.

For more information visit:

Stay Informed