A writ of habeas corpus (which means "to produce the body") is a court order demanding that a warden or other public officer produce an individual at court to show a valid reason the individual has been detained. This is an important right for prisoners. The Constitution provides that the right may not be suspended except for specific public safety instances.
Article I, Section 9, Clause 2:
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.
United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation
This clause is the only place in the Constitution in which the Great Writ is mentioned, a strange fact in the context of the regard with which the right was held at the time the Constitution was written1 and stranger in the context of the role the right has come to play in the Supreme Court's efforts to constitutionalize federal and state criminal procedure.2
Only the Federal Government and not the states, it has been held obliquely, is limited by the clause.3 The issue that has always excited critical attention is the authority in which the clause places the power to determine whether the circumstances warrant suspension of the privilege of the Writ.4 The clause itself does not specify, and although most of the clauses of § 9 are directed at Congress not all of them are.5 At the Convention, the first proposal of a suspending authority expressly vested "in the legislature" the suspending power,6 but the author of this proposal did not retain this language when the matter was taken up,7 the present language then being adopted.8 Nevertheless, Congress's power to suspend was assumed in early commentary9 and stated in dictum by the Court.10 President Lincoln suspended the privilege on his own motion in the early Civil War period,11 but this met with such opposition12 that he sought and received congressional authorization.13 Three other suspensions were subsequently ordered on the basis of more or less express authorizations from Congress.14
When suspension operates, what is suspended? In Ex parte Milligan,15 the Court asserted that the Writ is not suspended but only the privilege, so that the Writ would issue and the issuing court on its return would determine whether the person applying can proceed, thereby passing on the constitutionality of the suspension and whether the petitioner is within the terms of the suspension.
Restrictions on habeas corpus placed in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) have provided an occasion for further analysis of the scope of the Suspension Clause. AEDPA's restrictions on successive petitions from state prisoners are "well within the compass" of an evolving body of principles restraining "abuse of the writ," and hence do not amount to a suspension of the writ within the meaning of the Clause.16 Interpreting IIRIRA so as to avoid what it viewed as a serious constitutional problem, the Court in another case held that Congress had not evidenced clear intent to eliminate federal court habeas corpus jurisdiction to determine whether the Attorney General retained discretionary authority to waive deportation for a limited category of resident aliens who had entered guilty pleas before IIRIRA repealed the waiver authority.17 "[At] the absolute minimum," the Court wrote, "the Suspension Clause protects the writ as it existed in 1789. At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest."18
Building on its statement concerning the "minimum" reach of the Suspension Clause, the Court, in Department of Homeland Security v. Thuraissigiam (2020), explored what the habeas writ protected, as it existed in 1789.19 Thuraissigiam involved a Suspension Clause challenge to a provision in IIRIRA limiting when an asylum seeker could seek habeas review to challenge a removal decision and stay in the United States.20 Proceeding on the assumption that the Suspension Clause only prohibited limitations on the common-law habeas writ,21 the Court concluded that the writ at the time of the founding "simply provided a means of contesting the lawfulness of restraint and securing release."22 The asylum seeker in Thuraissigiam did not ask to be released from United States custody, but instead sought vacatur of his removal order and a new opportunity to apply for asylum, which if granted would enable him to remain in the United States.23 The Court concluded that such relief fell outside the scope of the common-law habeas writ.24 As a consequence, the Court held that, at least with respect to the relief sought by the respondent, Congress did not violate the Suspension Clause by limiting habeas relief for asylum seekers in IIRIRA.25
The question remains as to what aspects of habeas are aspects of this broader habeas are protected against suspension. Noting that the statutory writ of habeas corpus has been expanded dramatically since the First Congress, the Court has written that it "assume[s] . . . that the Suspension Clause of the Constitution refers to the writ as it exists today, rather than as it existed in 1789."26 This statement, however, appears to be in tension with the theory of congressionally defined habeas found in Bollman, unless one assumes that a habeas right, once created, cannot be diminished. The Court, however, in reviewing provisions of the Antiterrorism and Effective Death Penalty Act27 that limited habeas, passed up an opportunity to delineate Congress's permissive authority over habeas, finding that none of the limitations to the writ in that statute raised questions of constitutional import.28
In Boumediene v. Bush,29 in which the Court held that Congress's attempt to eliminate all federal habeas jurisdiction over "enemy combatant" detainees held at Guantanamo Bay30 violated the Suspension Clause. Although the Court did not explicitly identify whether the underlying right to habeas that was at issue arose from statute, common law, or the Constitution itself, it did decline to infer "too much" from the lack of historical examples of habeas being extended to enemy aliens held overseas.31 In Boumediene, the Court instead emphasized a "functional" approach that considered the citizenship and status of the detainee, the adequacy of the process through which the status determination was made, the nature of the sites where apprehension and detention took place, and any practical obstacles inherent in resolving the prisoner's entitlement to the writ.32
In further determining that the procedures afforded to the detainees to challenge their detention in court were not adequate substitutes for habeas, the Court noted the heightened due process concerns when detention is based principally on Executive Branch proceedings—here, Combatant Status Review Tribunals or (CSRTs)—rather than proceedings before a court of law.33 The Court also expressed concern that the detentions had, in some cases, lasted as long as six years without significant judicial oversight.34 The Court further noted the limitations at the CSRT stage on a detainee's ability to find and present evidence to challenge the government's case, the unavailability of assistance of counsel, the inability of a detainee to access certain classified government records which could contain critical allegations against him, and the admission of hearsay evidence. While reserving judgment as to whether the CSRT process itself comports with due process, the Court found that the appeals process for these decisions, assigned to the United States Court of Appeals for the District of Columbia, did not contain the means necessary to correct errors occurring in the CSRT process.35