Andrew Johnson Becomes President. First Progressive Income Tax. Abraham Lincoln Assassinated. Republicans Nominate Lincoln for President. Harriet Beecher Stowe Meets Lincoln. Although the writ of habeas corpus existed, the king often ignored it. To protect against such abuse, Parliament enacted the Habeas Corpus Act of to ensure that the king released prisoners when the law did not justify confining them.
The founding generation valued the Great Writ because they had this history in mind. Yet those who framed and ratified the Constitution also believed that in times of crisis, the executive might need leeway to hold suspects without answering to a court. Parliament had suspended the writ during the seventeenth and eighteenth centuries when it concluded that the king needed expanded detention power to contain threats.
Similarly, several states had equipped their governors with emergency power by suspending the writ during the Revolutionary War. Pre-ratification practice thus embraced both the importance of the writ and the need for a safety valve.
The Suspension Clause follows in this tradition. It protects the writ by imposing a general bar on its suspension. At the same time, it makes an exception for cases when an invasion or rebellion endangers the public safety.
A suspension is temporary, but the power it confers is extraordinary. When a suspension is in effect, the president, typically acting through subordinates, can imprison people indefinitely without any judicial check. The Clause does not specify which branch of government has the authority to suspend the privilege of the writ, but most agree that only Congress can do it.
President Abraham Lincoln provoked controversy by suspending the privilege of his own accord during the Civil War, but Congress largely extinguished challenges to his authority by enacting a statute permitting suspension.
On every other occasion, the executive has proceeded only after first securing congressional authorization. The writ of habeas corpus has been suspended four times since the Constitution was ratified: throughout the entire country during the Civil War; in eleven South Carolina counties overrun by the Ku Klux Klan during Reconstruction; in two provinces of the Philippines during a insurrection; and in Hawaii after the bombing of Pearl Harbor.
The most hotly debated questions concerning the Suspension Clause involve its effect in the absence of a formal suspension. On the other hand, as Chief Justice Marshall noted in Ex Parte Bollman the Clause does not itself expressly guarantee that access. The Court seems to have resolved this dispute in Boumediene v. Also in Boumediene , the Court decided—to much controversy—that habeas jurisdiction extends to prisoners detained outside the United States at Guantanamo Bay.
In recent years, the writ is most commonly sought by convicted defendants in state prison. Each year, over 18, petitions for the writ of habeas corpus are filed in federal court by state prisoners against their prison wardens. But a very slim fraction of those petitions are actually successful, in part due to the limits Congress placed on federal courts reviewing habeas petitions when it enacted the Anti-Terrorism and Effective Death Penalty Act of AEDPA.
The questions about the scope of and limits on the Great Writ are far from settled. American citizens held by the United States have the right to seek the writ of habeas corpus whether they are held at home or abroad. Noncitizens held within the United States also have a right to seek the writ.
Boumediene v. Bush extends the right to a third category of detainees: noncitizens held outside the territorial jurisdiction of the United States. Boumediene was not the first case in which the Supreme Court confronted the argument that a noncitizen enemy held abroad is entitled to seek a writ of habeas corpus in an American court.
In Johnson v. Eisentrager , a case decided in the wake of World War II, twenty-one German citizens held in an American military facility in Germany petitioned for the writ, maintaining that their detentions violated both the United States Constitution and international law. The Supreme Court held that American courts lacked authority to entertain these petitions.
It observed that the constitutional text did not expressly confer such a right, and that no court in history had ever issued a writ of habeas corpus on behalf of a noncitizen held captive outside the territorial jurisdiction of the United States.
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