Suspended Right of Habeas Corpus

Despite limitations placed on its availability by more recent legislation, the ‘‘Great Writ’’ remains our system’s fundamental safeguard for the individual’s protection against imprisonment without legal cause. The restriction on the suspension of the writ found in Article I, section 9, clause 2, of the Constitution of the United States provides that ‘‘[t]he privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion if the public safety may require it.’’ Although this provision applies only to the federal government, similar limitations on suspension of the writ now exist in state constitutions.

The inclusion of this provision within the limitations on the powers of the legislature would seem to suggest any authority to suspend the writ rests with Congress, not the executive. This logic is also consistent with the fact the writ typically issues to address unlawful detentions by the crown or executive. However, President Lincoln suspended the writ by executive order in several jurisdictions during the Civil War. Chief Justice Taney, sitting as Circuit Justice in Ex parte Merryman, 17 Fed. Cas. 144 (no. 9487) (Cir. Ct. D. Md. 1861), held that if the executive acting alone could suspend the writ, it would undermine the writ’s very purpose. Lincoln’s action was ratified with limitations by an act of Congress in 1863. More than a hundred years later President Roosevelt approved suspension of the writ in Hawaii after the attack on Pearl Harbor. When the legality of the suspension reached the Supreme Court in Duncan v. Kahanamoku, 327 U.S. 304 (1946), the privilege had been restored two years earlier, and the court found this issue moot. Thus, this question has not been clearly resolved, and other precedents involving restrictions on liberty by the executive in time of war have been offered to support the executive’s authority to suspend the writ. See, for example, Korematsu v. United States, 323 U.S. 214 (1944).

In Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866), the Supreme Court stated, ‘‘The suspension of the privilege of the writ of habeas corpus does not suspend the writ itself.’’ Under this interpretation the individual may petition for the writ, the writ can issue, and the court then decide whether the individual is allowed to proceed further. This approach seems to provide some safeguards for the individual in custody, but it must be noted it would only be available if the civil courts were open and operating.

VANCE L. COWDEN

References and Further Reading

• Duker, William F. A Constitutional History of Habeas Corpus. Westport: Greenwood Press, 1980.
• Jackson, Jeffrey, The Power to Suspend Habeas Corpus: An Answer from the Arguments Surrounding Ex parte Merryman, 34 U. Baltimore Law Review 11 (2004).
• Rehnquist, William H. All the Laws but One. New York: Alfred A. Knopf, 1998.
• Sokol, Richard P. Federal Habeas Corpus. 2nd ed. Charlottesville: Michie, 1969.

Cases and Statutes Cited

• Duncan v. Kahanamoku, 327 U.S. 304 (1946)
• Ex parte Merryman, 17 Fed. Cas., 144 (no. 9487) (Cir. Ct. D. Md. 1861)
• Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866)
• Korematsu v. United States, 323 U.S. 214 (1944)