Habeas Corpus Act of 1679. London: John Bill, Henry Hills, and Thomas Newcomb, 1681. Law Library, Library of Congress (077)

King John’s Magna Carta guaranteed to all free men immunity from illegal imprisonment, a guarantee that has traditionally been invoked by way of the writ of habeas corpus. Under the concept of habeas corpus in Anglo-American jurisprudence, persons who are deprived of their liberty have the right to challenge the legality of their arrest or detention through a judicial inquiry. Habeas corpus is a Latin phrase meaning “produce the body.” By means of the writ of habeas corpus a court may order the state to “produce the body,” or hand over a prisoner so that it might review the legality of the prisoner’s detention.

Although King John’s Magna Carta did guarantee protection from unlawful imprisonment, it did not establish a process by which a person might sue for his freedom. The association between Magna Carta’s protection and the writ of habeas corpus only took root in the seventeenth century following the conflict between the House of Commons and King Charles I, after which the writ of habeas corpus became one of the most important privileges associated with English liberties. It was reaffirmed in the Habeas Corpus Acts of 1640 and 1679 and appears frequently in discussions of constitutional rights throughout the era leading to American independence. It is one of the fundamental liberties mentioned in the body of the United States Constitution.

Habeas Corpus Act of 1679

The writ of habeas corpus had its origins in British common law, predating Magna Carta. In its modern form, however, it was never enacted into law until the Habeas Corpus Act of 1679. Parliament passed the law during the reign of King Charles II (reigned 1660–1685) fearing that the king’s Catholic brother James (reigned as James II, 1685–1688) might succeed him and disregard English liberties. The act, which guaranteed the privilege of the petition and set forth the requirements for its execution, remains in effect in England today. It also influenced the framers to include habeas rights in the U.S. Constitution.

Habeas Corpus Act of 1679. London: John Bill, Henry Hills, and Thomas Newcomb, 1681. Law Library, Library of Congress (077)

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Merryman Case

Early in the American Civil War, President Abraham Lincoln authorized the commander in chief of the U.S. Army to suspend the writ of habeas corpus in response to riots in the state of Maryland. Ex Parte Merryman, a case before Maryland’s federal district court, argued that only Congress, not the president, had the authority to suspend the writ of habeas corpus. Supreme Court Chief Justice Roger B. Taney wrote in his decision for the Maryland court, that if “[t]hese great and fundamental laws . . . . have been disregarded and suspended, like the writ of habeas corpus, by a military order,” then “the people of the United States are no longer living under a government of laws, but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found.”

The Merryman Habeas Corpus Case. Baltimore and Jackson, Mississippi: J. L. Power, 1861. Rare Book and Special Collections Division, Library of Congress (046)

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Civilian Exclusion Order, No. 41

In February 1942, two months after Pearl Harbor, President Franklin Roosevelt signed Executive Order 9066, which granted the secretary of war authority to designate regions as critical to U.S. security and to relocate populations residing in them to military detention centers. Based on this authority, the U.S. military deported more than 110,000 Japanese Americans living along the West Coast to relocation camps for the duration of World War II. On May 5, 1942, the Western Defense Command and the Fourth Army posted this notice requiring the evacuation of all ethnic Japanese residing in the San Francisco neighborhood of the Presidio.

Headquarters Western Defense Command and Fourth Army. Civilian Exclusion Order No. 41. Presidio of San Francisco, California, May 5, 1942. Law Library, Library of Congress (047)

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Manzanar Relocation Camp

More than 110,000 ethnic Japanese living in the United States were relocated to ten different detention centers during World War II. One of these, Manzanar War Relocation Center, was located in California’s Owens Valley. Photographer Ansel Adams documented life in that camp and wrote: “The purpose of my work was to show how these people, suffering under a great injustice, and loss of property, businesses and professions, had overcome the sense of defeat and dispair [sic] by building for themselves a vital community in an arid (but magnificent) environment.”

Ansel Adams (1902–1984). Mess Line, Noon, Manzanar Relocation Center, California [Japanese internment camp], 1943. Photographic reproduction. Prints and Photographs Division, Library of Congress (048)

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Question of Legality

Korematsu v. United States arose from the refusal of Fred Korematsu, a Japanese American, to obey the military’s order that he leave his home. As the U.S. Supreme Court considered the case, Justice Felix Frankfurter wrote to his colleague Justice Robert Jackson about Congress’s power to authorize the military to restrict the privilege of the writ of habeas corpus. Frankfurter asked whether, in light of a legislative suspension of the writ of habeas corpus, the Constitution limited Congress’s power to create penal sanctions against individuals who would not submit to incarceration.

Felix Frankfurter (1882–1965) to Robert H. Jackson (1892–1954), October 27, 1944. Typed letter. Robert Jackson Papers, Manuscript Division, Library of Congress (049)

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Japanese Internment and the Court

In 1944, the U.S. Supreme Court announced two apparently inconsistent decisions the day after President Roosevelt rescinded the military’s authority to intern Japanese Americans. In one case, Ex Parte Endo, which arose from a petition for habeas corpus by a Japanese American interned in a military detention camp, the Court held that the military had no authority to detain loyal American citizens. In the other, Korematsu v. United States, the Court upheld the U.S. military’s authority to relocate Japanese Americans living on the West Coast to detention centers. Associate Justice Robert Jackson wrote a powerful dissenting opinion in the Korematsu case, arguing that the decision was a “blow to liberty,” and a “loaded weapon” aimed at the due process clause of the Fifth Amendment.

Dissenting opinion by Justice Robert Jackson in Korematsu v. United States. Supreme Court Decision, No. 22, December 18, 1944. Law Library, Library of Congress (050)

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Guantanamo Detention and the Writ of Habeas Corpus

Boumediene v. Bush was one of several habeas corpus cases that have come before the U.S. Supreme Court in relation to the “War on Terror.” Lahkhdar Boumediene, an enemy combatant captured on the battlefield and detained at Guantanamo Bay detention camp, petitioned to have his detention reviewed by a civilian court. The Court ruled that habeas corpus rights extended to prisoners held in places under U.S. sovereignty, whether or not the prisoners are U.S. citizens. Justice Anthony Kennedy wrote in the majority opinion: “the writ of habeas corpus became the means by which the promise of Magna Carta was fulfilled.”

United States Supreme Court. Boumediene v. Bush, 553 U.S. 723 (2008). Washington, D.C.: Government Printing Office, 2012. Law Library, Library of Congress (051)

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Controversy over the War on Terror

After the attacks on September 11, 2001, the military and domestic policies associated with the War on Terror have been a source of political controversy as policy makers and the public contend with the imperatives of national security and the rule of law. Political cartoonist Tony Auth illustrated the conflict between these objectives in his characterization of former U.S. Attorney General John Ashcroft’s November 2001 announcement of a large-scale anti-terror arrest and detention campaign by the Department of Justice.

Tony Auth (1942–2014). In the War on Terror, Sometimes Sacrifice is Necessary. Published in the Philadelphia Inquirer, November 13, 2001. Ink, porous point pen, and blue pencil drawing. Prints and Photographs Division, Library of Congress (053)

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Habeas Cases in the War on Terror

In 2004, the United States Supreme Court decided Hamdi v. Rumsfeld and Rasul v. Bush, both relating to the executive branch’s detention of designated enemy combatants in the Guantanamo Bay detention camp in Guantanamo, Cuba. Both decisions expanded the rights of Guantanamo detainees to challenge their detainment before a judge or other “neutral decision-maker.”

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