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Habeas Corpus History

  • U.S. Constitution signed

    Article I, Section 9: 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.
  • Civil War Begins

    Civil War Begins.
  • Civil War Ends

  • Ex Parte Milligan

    (1866 U.S. LEXIS 861; 4 Wall. 2) A US citizen and confederate sympathizer is imprisoned for participation in an ill-conceived plot to free Confederate prisoners. He is given a death sentence in a military court. Milligan challenges his detention, and the Supreme Court rules that as a U.S. citizen, Milligan is entitled to habeas corpus protection.
  • WWII Begin

  • Ex Parte Quirin

    (317 U.S. 1) During wartime, 8 German nationals suspected of spying against the U.S. were arrested inside the country and tried as combatants in a military commission. Supreme Court denied habeas corpus protection to the detainees because they had committed acts of war against the United States.
  • WWII Ends

  • Johnson v. Eisentrager

    (339 U.S. 763) German nationals who committed acts of war against the U.S. were tried in military tribunals after the war was over, and on foreign territory. Supreme Court determined that prisoners were "beyond the territorial jurisdiction" of the U.S., effectively limiting habeas corpus protection to U.S. soil.
  • 9/11

  • Congress Passes AUMF

    Authorization for Use of Military Force (AUMF; Pub.L. 107-40, 115 Stat. 224). U.S. government claimed the right to hold any terrorism suspect, even a U.S. citizen designated as an “enemy combatant,” until the end of the war.
  • Hamdi v. Rumsfeld

    (542 U.S. 507) Hamdi, a U.S. citizen alleged to have participated in hostilities against the U.S. in Afghanistan, was held at Guantanamo for two years without access to legal counsel, pursuant to AUMF. He filed a habeas petition challenging his detention. Supreme Court ruled that he had been detained legally, but was not given due process, and therefore was entitled to habeas corpus protection.
  • Rasul v. Bush

    (542 U.S. 466) Non-U.S. citizen detainees at Guantanamo held for two years as "enemy combatants" were denied access to counsel. Detainees were not citizens of countries with which the U.S. was at war. Supreme Court held that Guantanamo was a "territory over which the United States exercises exclusive jurisdiction and control" and therefore the detainees were entitled to habeas corpus protection.
  • Congress passes DTA

    Detainee Treatment Act (DTA; Pub. L. No. 109-148, 119 Stat. 2739). Created minimal due process for Guantanamo detainees per Rasul decision. Removed the ability of any court to hear habeas petitions from Guantanamo prisoners, and designated the D.C. Circuit Court of Appeals as the only appellate authority for Combatant Status Review Tribunal (CSRT) findings.
  • Hamdan v. Rumsfeld

    (548 U.S. 557) Guantanamo detainee convicted in a military commission petitioned for habeas corpus protection. Supreme Court held that the military commission had violated Uniform Code of Military Justice and Geneva Conventions.
  • Congress passes MCA

    Military Commissions Act (MCA; Pub. L. No. 109-366, 120 Stat. 2600). A viable military commission process was required after Hamdan invalidated the existing process. Instead, with the MCA Congress explicitly exempted military commissions from UCMJ and Geneva conventions. Additionally, MCA amended DTA to make its habeas corpus limitations retroactive. Operating under the MCA, the government owed virtually no habeas protection to Guantanamo detainees.
  • Boumediene v. Bush

    Landmark habeas case. Guantanamo detainees deemed "enemy combatants" held for years without trial. Supreme Court articulated three factors to determine habeas corpus protection: (1) citizenship / status of the detainee; (2) nature of the site of detention; (3) practical obstacles to resolving habeas entitlement. Court found that Boumediene petitioners satisfied the three-part test and were entitled to habeas. Court further held important section of MCA unconstitutional.
  • Kiyemba v. Obama

    (555 F.3d 1022, vacated by 130 S. Ct. 1235 (2010)) Complex set of cases with some questions still pending. Kiyemba shows how "stateless" individuals -- not guilty of a crime, but unable to return to their home country -- exist in a state of limbo in Guantanamo.
  • Maqaleh v. Gates

    (No. 09-5265, 2010 U.S. App. LEXIS 10384, D.C. Cir. May 21, 2010) Test of habeas corpus rights at Bagram Air Force Base in Afghanistan. Initial lower court ruling was against the detainees, however a series of subsequent challenges has re-opened the door. Raises a key question about U.S. offshore detention facilities.
  • Maqaleh v. Gates reopened

    (Civil Action Nos. 06-1669, 06-1697, 08-1307, 08-2143, D.C. Cir. Feb 15, 2011) Habeas corpus actions opened for amendment. Decision pending.