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Frequently Asked Questions

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1. What is a writ of habeas corpus?

The writ protects people from arbitrary arrest, disappearance and indefinite confinement without charge or trial.  It is the legal way that a person can have a court review the lawfulness of that confinement.  Literally, the writ orders the official having custody of the person to bring the person before the court. (Habeas corpus means “produce the body.”)  This ensures that no person will languish indefinitely in prison merely on the orders of an officer of the law or member of the government without a chance for court review and release.

2. When was the writ of habeas corpus first recognized?

The writ has protected individual liberty for centuries and has it origins in the Magna Carta of 1215.  A cornerstone of Western liberty and justice, the writ embodies the principle that laws – not Presidents or Kings – govern.  In the United States, the writ is expressly referenced in the Constitution.  Today, in the 21st century, the writ is needed to protect fundamental liberties in an age of international terrorism.

3. Do Guantanamo detainees have a right to the habeas corpus writ? 

A federal statute, first enacted in 1789, provides persons the right to file writs of habeas corpus.  See 28 U.S.C. § 2241.  The Supreme Court held that this statutory right applies to non-citizens designated as “enemy combatants,” including at the U.S. naval base at Guantanamo Bay, Cuba, where the United States has maintained exclusive and extensive control for several decades.  Rasul v. Bush, 542 U.S. 466 (2004).  Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006). 

The Constitution also protects the right to habeas corpus in Article 1, Section 9.  The extent to which the Constitution protects Guantanamo detainees (and other non-citizens deemed to be “enemy combatants” by the Bush Administration) has not been decided by the Supreme Court.  Certainly, the Administration does not have the power to indefinitely hold a non-citizen in the United States without charge or a fair hearing, unless Congress validly suspends the writ.  The Supreme Court has said:

“All agree that, absent suspension, the writ of habeas corpus remains available to every individual detained within the United States.”  Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004).

4. How has the Military Commissions Act of 2006 (MCA) affected the right of habeas corpus for Guantanamo detainees?

The MCA stripped away the statutory right to habeas corpus for non-citizens held at Guantanamo and for other alleged non-citizen “enemy combatants” in the “war on terror.”  Recently, two courts agreed that Congress could lawfully take away the statutory right for Guantanamo detainees.  Boumediene vs. Bush, No. 05-5062-5064 (D.C. Cir. Feb. 20, 2007); Hamdan vs. Rumsfeld, No. 04-1519, (D.D.C. Dec. 13, 2006). 

Also, both courts agreed with the Administration that Guantanamo detainees have no constitutional habeas rights.  The detainees now are requesting that the Supreme Court take their cases.  In the meantime, the detainees have no meaningful way to challenge the lawfulness of their confinement, and the Administration can continue to hold them indefinitely.      

5. What has the Bush Administration done since the Military Commissions Act of 2006 became law?

Shortly after the MCA became law, the Administration moved swiftly to stop the courts from reviewing its detention and treatment of Guantanamo detainees.  The U.S. Department of Justice (DOJ) demanded that the court dismiss all pending petitions for habeas corpus filed by Guantanamo detainees.  As noted above, federal courts in the District of Columbia recently dismissed dozens of habeas petitions filed by Guantanamo detainees.  Boumediene vs. Bush, No. 05-5062-5064 (D.C. Cir. Feb. 20, 2007); Hamdan vs. Rumsfeld, No. 04-1519 (D.D.C. Dec. 13, 2006). 

In addition, the Administration is using the MCA to continue holding a
non-citizen on U.S. soil without charge or fair hearing.  The DOJ moved to dismiss the habeas petition of a citizen of Qatar, Ali Saleh Kahlah al-Marri, who was arrested in Illinois and who has been imprisoned for over three years in a U.S. military brig in the United States as an alleged “enemy combatant.”  The case is on appeal at the United States Court of Appeals for the Fourth Circuit in Virginia. 

Take Action: Sign the Petition to Restore Habeas Corpus

Learn More: Read the billsS. 185, the “Habeas Corpus Restoration Act of 2007,” S. 576, “Restoring the Constitution Act of 2007,”  and H.R. 1416, the “Habeas Corpus Restoration Act of 2007."  View the letter [pdf] sent by Public Citizen and allies to Members of Congress urging immediate restoration of the writ of habeas corpus.