This article has been written by Oishka Banerji of Amity Law School, Kolkata. This article discusses the concept of writ of Habeas Corpus in light of the United State of America. 

It has been published by Rachit Garg.


The concept of habeas corpus is one of the most important ones in the United States. It is a centuries-old principle that safeguards individual liberty and is enshrined in the US Constitution. An ancient writ under the common law, a writ of habeas corpus indicates having a body before the court. When we talk about individual liberty, the prime related subject-matter that comes into discussion is unlawful and indefinite imprisonment of an individual on the basis of unreasoned decision-making by the country’s judicial authorities. Generally issued to a detaining authority to submit the person detained before the court of law in order to know the ground of such detention, the writ of habeas corpus serves as a safeguarding order by the court of law for the detained individual.  In this article, we’ll explore what habeas corpus is, its origins, its importance, and how it has been used in the US.

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What is Habeas Corpus

Habeas corpus is a Latin term that translates to “produce the body” and refers to a writ or legal order issued by a court that requires a person to be brought before it for review. It is primarily used as an instrument to ensure that the law is followed and that individuals are not being unlawfully detained. The writ of habeas corpus has been regarded as a cornerstone of human freedom in England as a foundation of human freedom and this freedom was insisted by the British citizens, to be made available to them, wherever they went for business or colonization. Following this very road, the writ established a prominent place in the Constitution of the United States, which also made ways for the independence of British colonies in America. It is ideal to mention the position of this writ with respect to India as in the democratic nation where personal liberty remains at stake often due to the conflict between executive and individuals. The Supreme Court of India alongside high courts across the nation have time and again proved to be the guardian protector of such rights guaranteed under the Constitution of India. Recognized as an effective measure to provide with a speedy remedy for safeguarding personal liberty, the writ of habeas corpus is a writ of right is grantable ex debito justitae (to do justice between the parties).

In the United States, the writ of habeas corpus is enshrined in the Constitution, which states that “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.” 

Former Chief Justice Marshall of the Supreme Court of the United States had referred to habeas corpus as the “great writ” in the case of Ex parte Bollman (1807). The ancient legal device which challenged the lawfulness of any detention made, is presently put to use by the state prisoners who have been serving sentences as a consequence of conviction of a crime by the state courts.  Although the Supreme Court of the United States while deciding the case of Preiser v. Rodriguez (1973) has approved the relief provided in form of the writ of habeas corpus to such category of prisoners on grounds of prejudicial or constitutional error notice in their state criminal proceedings, for certain decades now, the availability of such relief to state prisoners have been compacted.  This restriction on the existing relief can be said to be the not so favorable consequence of implementing the Antiterrorism and Effective Death Penalty Act of 1996 (‘AEDPA’). By means of this statute, the Congress had aimed to amend the existing habeas corpus law alongside doctrinal development made by the judiciary over the years. 

On similar grounds was the decision in the case of Edwards v. Vannoy (2021) made, which continued the tightening process in terms of relief to state prisoners. Holding that the “writs of habeas corpus may be granted, not that they must be granted”, the Supreme Court’s decision remains theoretically significant in today’s time and is often seen to be practically reflected as well. The Court went on to state that the writ of habeas corpus does not exist to authorize any federal court to revisit a judgment that has been issued by a concerned court, vested with competent jurisdiction, once the same has been declared final. Thus viewed in 2023, the relief guaranteed by the writ of habeas corpus has become difficult for state prisoners to abstain as compared to the scene in 1971. 

Origin of habeas corpus

Habeas corpus has its roots in English common law, which is the legal system that was in place in England before the American Revolution. It was first codified in the Habeas Corpus Act, 1679, which established a procedural right for those detained to challenge their imprisonment in court and receive a fair hearing. The writ of habeas corpus was later incorporated into the US Constitution and can only be suspended in times of war or national emergency. It is interesting to state that during the time of the American revolution, the rights that protected individual liberty were recognized as the right to habeas corpus by the British colonies in North America. 

Considered to be the cornerstone of American jurisprudence, the writ of habeas corpus serves as an extraordinary remedy for confined individuals thereby ensuring that such confinement is not illegal. The framers of the US Constitution ideally considered this writ to be extremely relevant because of which, they had written the ‘Suspension Clause’ in the Constitution which did not even have the Bill of Rights incorporated in it back then. Found in Article 1, Section 9, the Suspension Clause laid down that the privilege that the writ of habeas corpus has to offer must not be suspended or taken away unless a situation such as invasion of public safety or rebellion arises. The very history of habeas corpus in America reflects how fundamental the founding fathers of the Constitution believed the right of exercising the writ of habeas corpus to be.

Like all other legal doctrines that have been developing over centuries, habeas corpus is also a complex legal area that undercover in-depth explanations. The federal courts were first vested with the authority to issue a writ of habeas corpus by means of the Judiciary Act of 1789. This statute was broadened in 1867 in order to extend the right of federal habeas corpus to that of state prisoners. In 1948, a series of statutes were adopted by Congress to supersede habeas corpus. Nevertheless, providing prisoners with an identical form of remedy was available. The statute, 28 U.S.C. 2255, was enacted keeping in mind federal prisoners and this became one of the well-known developments in the history of habeas corpus in America.

Section 2255 of the statute states that habeas corpus is a broad remedy that makes room for a federal prisoner to plead before a court to vacate, set aside or correct a federal sentence on the grounds that the same stood in violation of the Constitution and its established principles, or the court that directed the sentence was incompetent to do for was without jurisdiction to impose such sentence, or that the sentence that was directed was in excess of what has been legally prescribed. In case of a federal prisoner who wishes to invoke habeas corpus in order to challenge his detention,  the aforementioned provision lays down the vehicle which can help in overcoming such a challenge.

Importance of the writ of habeas corpus

The importance of the writ of habeas corpus lies in the very name of the writ. As has been discussed previously, the writ signifies producing the body which means determining the authority of the body who is responsible for restraining personal liberty of an individual by detaining him. Considered to be one of the significant legal principles in the United States, the writ of habeas corpus has been designed to extend protection to individuals from being detained arbitrarily and unlawfully. It allows individuals who are unlawfully detained to challenge their imprisonment in court and receive a fair hearing. Prevention of executive overreach is another important feature that the writ of habeas corpus has added to its feathers. This indeed signifies that government authorities are restrained from abusing the vested power by means of detaining individuals without any reasonable cause. The writ of habeas corpus is also recognized as a critical tool for ensuring justice thereby also safeguarding individual liberty. 

When the writ of habeas corpus may apply 

It is necessary to note that the writ of habeas corpus is available as a form of remedy in every case that includes infringement of personal liberty. It involves a process for protecting the liberty of its subjects by means of affording and from any kind of illegal detention that directly impacts individual liberty.

When may the writ of habeas corpus not apply 

The writ of habeas corpus does not find any application in the listed cases: 

  1. The territorial jurisdiction of the court does not allow it to have authority to decide the writ petition seeking application of the writ of habeas corpus, or
  2. The alleged detention has been done lawfully and in accordance with the decision delivered by the competent court. 

Controversy surrounding the writ of habeas corpus in the United States

The writ of habeas corpus in the United States has been through major events that have time and again been brought under the radar of inspection that has turned to be controversies. While mentioning all is not a possible task, a few have been discussed hereunder:

  1. It was after the 9/11 attacks and the War on Terror that the Bush administration alongside Congress decided to repeal the right to habeas corpus. It was in 2006 that the Military Commissions Act was passed thereby reversing the mandated right of habeas corpus to be applicable to all detainees that were under the jurisdiction of the government of the United States. 
  2. The Act of 2006 was responsible for erasing the liability of courts to hear habeas corpus petition by any individual who is considered to be a foe of the US government and is likely to cause harm to the very administration. The Act, as has been discussed later as well, strips any non-US citizen of their right to be heard by the competent court for establishing their innocence, as can be seen to have been applied on the Guantanamo Bay detainees, who are considered to be perpetrators of anti-American terrorism. 
  3. In the summer of 2020, the right guaranteed by the writ of habeas corpus was suspended in several New York City metro area counties, namely, Manhattan, Bronx, Brooklyn, because of mass arrests that were carried out upon the individuals involved in the Black Lives Matter protests.

How does the writ of habeas corpus protect individual freedom

The writ of habeas corpus is an important tool for protecting individual freedom. It prevents the government from arbitrarily detaining individuals without cause. It also allows individuals to challenge their imprisonment in court and receive a fair hearing. The writ of habeas corpus also ensures that the government follows the law and does not abuse its power. This means that the government cannot hold individuals in prison for an indefinite period of time without due process. The writ also ensures that individuals are not detained without sufficient evidence to support their imprisonment.

The previously discussed case of Edwards v. Vannoy (2021) has an interesting note to be discussed under this heading which is the concurring opinions by Justice Thomas and Justice Gorsuch. While these opinions had agreed with the limited scope of application of the writ of habeas corpus, they also suggested having divergent thought processes behind the same. The concerned opinions stated that traditionally, there arose no relief by means of the writ of habeas corpus for the prisoners as it was held pursuant to judgment delivered in a criminal conviction case. The indication that this traditional rule will be a torchbearer for the judgements on similar instances to come, was also made by these opinions. Put simply, the Justices want to indicate that whenever a habeas relief is sought by a state prisoner before a federal court, the court is only left with the issue to check whether the state court that had sentenced the prisoner had competence to do so or not. If the answer to this issue should be in affirmative, the federal court is supposed to deny the relief to be granted to the state prisoner irrespective of whether the state court’s proceeding contributed to violation of federal constitutional rights of the state prisoners. These rights generally range from prisoner’s right to a jury trial, to that of counsel assistance of counsel, calling witnesses, etc. 

Protection of individual freedom is therefore a matter resting solely with the courts of law and their decision-making. The fact that the judiciary eliminates injustice to establish justice for the aggrieved parties with an intention to abide by the very Constitution makes room for incorporating reasoning and principles of fairness, equity and justice in such decision-making. 

US Constitution and habeas corpus

As have been explained previously, the scope of habeas corpus lies in Article I, Section 9 of the US Constitution which deals with the Suspension Clause and the writ of habeas corpus. According to this Clause, it is only the federal government and not the states that are limited to it. The discussion surrounding habeas corpus revolves around this Clause for it has very diligently chosen not to disclose as to on whom does the power to determine the grounds for warrant suspension of the writ’s privilege, rests.  

But, the majority of the clauses of Section 9 directs the power to be resting on the Congress. At the Federal Convention, 1787, it was the legislature who was given such determining authority, but as the same failed to see the daylight, Congress’s power on the same was assumed and also stated by the judiciary in the Bollam’s case (1807). Further, it was President Abraham Lincoln who suspended this privilege on his own motion in the early Civil War period. This had invited opposition on ground as to whether he had received congressional authorization in his decision or not. Following this, three other suspensions were ordered which were generally on the basis of express authorizations from Congress.

The second question that arises in this regard is that when the suspension is operating, what exactly was getting suspended? To answer the same, it could be stated that the writ cannot be said to be suspended, instead the attached privilege to it has been. This was because when the writ is issued by the issuing court, the court is supposed to determine as to whether the person applying for the same can proceed, thereby ipso facto passing on the suspension’s constitutionality. It would also determine whether the petitioner was within the terms of the suspension or not. This was observed in the Ex parte Milligan case (1866).

Habeas Corpus Act 1867

The Habeas Corpus Act of 1867 was an important Act passed by Congress. This Act established the procedure for obtaining a writ of habeas corpus and specified the circumstances under which the writ could be suspended. The Act also established a system of federal habeas corpus courts and made it easier for individuals to challenge their imprisonment in court. The Act also clarified the process for obtaining a writ of habeas corpus and ensured that individuals were not detained without due process.

The Act was passed on 5th February, 1867 for amending the then-existing Judiciary Act, 1789 in order to grant the courts with the power of issuing the writ of habeas corpus for the purpose of safeguarding the dignity and liberty of illegally detained individuals whose detention was prima facie in violation with any relevant law of the United States of the very Constitution. Before the Act of 1867 had germinated, prayer petitions for issuing the writ of habeas corpus could only be granted to the detained individuals by the state courts thereby barring the federal court system from issuing the similar writs. The prior scenario was also not reasoned and justified for the fact that the court could also deliver a decision without technicalities being followed. 

The Act of 1789 was responsible for restoring habeas corpus to a significant extent before its suspension by Congress in 1863 thereby extending the power to issue the writ of habeas corpus by the Federal courts as well upon detention challenged by state prisoners. But the Act denied habeas relief to anyone belonging to the military custody for committing any military offense or having aided the Confederacy. 

Procedure for obtaining a writ of habeas corpus in the US

The procedure involved in obtaining the writ of habeas corpus in the United States have been laid down hereunder: 

  1. When an individual seeks to obtain a writ of habeas corpus, he or she must first file a petition before the federal district court where the individual is being held. 
  2. The petition must include a statement of the grounds on which the writ is sought and any legal authority that the petitioner believes supports their claim. 
  3. It is upon the court to decide whether the writ plead for must be issued or not, taking into account the circumstances that surrounds the delivery of such a writ. 
  4. If the court decides to issue the writ, it will then issue an order directing that the individual be brought before the court for a hearing on their petition.

Military Commissions Act, 2006

The Supreme Court of the United States in June 2006 while deciding the case of Hamdan v. Rumsfeld (2005) had opined that military commissions at Guantanamo that were given birth by President Bush were invalid. The Court had further ruled that the rules laid down by President Bush were in violation of Common Article 3 of the Geneva Conventions that dealt with treatment offered to detainees in terms of their right to life. Following this decision, President Bush asked Congress to make way for legislation which would allow military commission trials thereby stripping of the habeas corpus right from the detainees. This is how the Military Commission Act, 2005 had seen the light of the day. 

Section 6 of the Act interestingly rips off the non-citizens who are declared as “enemy combatant” by the President, of the right to be heard by the court in order to prove his innocence, irrespective of how long he is being confined without charge. It is notable to mention that Section 6 which is applicable to detainees who are held in prison in Guantanamo Bay and elsewhere, stands ultra vires the Constitution and the basic values of the Americans. 

Reforming the application of habeas corpus in present times

As has been discussed previously, both Justices Thomas and Gorsuch have proposed radical changes in the habeas corpus model that exists presently. Currently, the Supreme Court of the United States exercises the relief granted by the writ of habeas corpus in the form of  ‘constrained certiorari substitute’ model. This model provides that when a federal court is said to be considering a petition asking for issue and implementation of the writ of habeas corpus from a state prisoner, the relief of habeas corpus can only be granted on the following grounds:

  1. The prisoner’s sentence was vacated by the Supreme Court, if at all
  2. The Supreme Court had granted the petition asking for a writ of certiorari from the prisoner while the prisoner’s case was under the direct review of the Apex Court.

One of the prime noticeable features of this model is its treatment of habeas corpus as an exemption from preclusion. It is necessary to note that a federal court which is considering a habeas corpus petition can reconsider the same and reach a different conclusion when placed in comparison with the decision given by the state courts, in relation to the prisoner’s case. Thus, under the current model of habeas corpus, the writ has been serving prisoners as a restricted substitute for being reviewed by the Apex Court by means of a writ of certiorari.

Case laws related to habeas corpus

This section of the article holds relevance because habeas corpus was developed and interpreted majorly through the judiciary and when it comes to the United States, the two very important case laws, focusing only on its ratio, surrounding the writ of habeas corpus which has also seen its mentioning in the article, have been discussed hereunder. 

Wade v. Mayo (1948)

In the case of Wade v. Mayo (1948), the detained individual, convicted of a noncapital offense under a state court of Florida, sought release by means of habeas corpus in a state court thereby claiming denial of his federal constitutional right to counsel. The prayer was initially denied thereby making the detainee undergo five years of imprisonment. Followed by this, the doors of the US Supreme Court were knocked. The Apex Court was of the opinion that denial of appointment of counsel when requested by the arrested individual in a criminal case, on the ground that he lacks proportionate funds, is a clear representation of denial of due process of law under the Fourteenth Amendment of the US Constitution. On such reasoning, the decision of the state supreme court was overturned thereby restoring the guaranteed rights of the illegally detained individual. 

Harris v. Nelson (1969)

The case of Harris v. Nelson (1969) marks to be one of the landmark decision-making on the issuance of the writ of habeas corpus in the United States. In this case, a state detainee had filed a habeas corpus petition before the federal district court alleging improper admission of evidence during his trial as they were based on the information given by an unreliable informant. The district court had ordered an evidentiary hearing, followed by which the prisoner had served on the respondent a series of interrogatories, in pursuant to Rule 33 of the Federal Rules of Civil Procedure, which was designed to establish the unreliability claimed of the informant. Upon such a claim and the reasoning provided by the district court, it was concluded that the objections that were raised by the respondent stood overruled as there was no authority that existed for the issuance of the interrogatories. The respondent had thereafter prayed for a writ of mandamus or prohibition before the Court of Appeals and had vacated the order delivered by the district court (authorizing the interrogatories). The order was scrapped on the basis of Rule 81(a)(2) of the Civil Procedure that made the discovery procedures of the Federal Rules of Civil Procedure inapplicable to habeas corpus proceedings, thereby not authorizing interrogatories to use their discoveries in any habeas corpus proceedings (28 U.S.C. § 2246). 

Wainwright v. Sykes (1977)

The Wainwright v. Sykes (1977) case is an important example of how the writ of habeas corpus can be used to protect individual freedom. In this case, the United States Supreme Court ruled that the state of Florida had violated the right of the defendant, Clarence Earl Gideon, to a fair trial by denying him the right to counsel. The court ruled that the state of Florida had violated the right to due process under the Sixth Amendment and ordered that a new trial be held with the provision of counsel.  The case has been remarkable in deciding that the federal court when deciding upon a habeas corpus petition, can have a different opinion from that of the state court’s decision upon the detainee’s confinement, even if the decision made by the state court was declared to be final. Thus, the federal court will not be bound by the determining criteria of the state courts and make a decision of its own. This case is an important example of how the writ of habeas corpus can be used to ensure justice and protect individual liberty.

Boumediene v. Bush (2008)

The Boumediene v. Bush (2008) case is another important example of how the writ of habeas corpus can be used to protect individual freedom. In this case, the United States Supreme Court ruled that the US government had violated the right of the detainees at Guantanamo Bay to a fair hearing by denying them access to the US court system. The court ruled that the government had violated the right to due process under the Fifth Amendment and ordered that the detainees be allowed access to the US court system. This case is an important example of how the writ of habeas corpus can be used to ensure justice and protect individual liberty.

The D.C. Circuit in this case had ruled in favour of the government (Bush). It had held that the Suspension Clause is restricted to safeguarding the writ of habeas corpus as it was existing in 1789, and that the writ would not have been understood in 1789 to have been applied to an overseas military base that was leased from a foreign government. Thus, it was clear that when it comes to constitutional rights, applicability to aliens outside of the United States, is limited and the leased military base in Cuba, in this case, did not qualify to be inside the territorial extent of the United States. 

Subsequent proceedings

In subsequent proceedings, the US Supreme Court has clarified the scope of the writ of habeas corpus and its application in the US. The court had opined that the writ applies to individuals detained in US military prisons and that those individuals have a right to a fair hearing. In addition, the court also clarified that the writ applies to individuals detained in non-military facilities as well, such as immigration detention centers. In this case, a five-judge bench had overturned the decision of the D.C. Circuit stating that the detainees could not be barred from seeking habeas corpus relief or invoking the Suspension Clause merely because they were designated as enemy combatants or held at Guantanamo Bay. This means that individuals detained in these facilities have a right to challenge their imprisonment in court and receive a fair hearing.


The writ of habeas corpus is a centuries-old legal principle that safeguards individual liberty. It is a critical tool for ensuring justice and protecting individual freedom. It is enshrined in the US Constitution and has been used in numerous cases to ensure that individuals are not arbitrarily detained and that the government follows the law. The writ of habeas corpus is an important legal principle that must be respected and upheld. It is essential to maintaining justice and protecting individual liberty in the United States. Over the ages, it continues to hold relevance because it is the judiciary who have kept it alive by means of different cases that knocks on its doors. 



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