Habeas corpus

Habeas corpus is a Latin term meaning "you have the body." Lawyers might petition for a " writ " (or court order) of habeas corpus , which if issued by the judge would force the law enforcement entity that is holding a person in custody to appear before a judge with the person being detained so that the judge can review the facts of the case and determine whether or not there is justifiable cause to continue to hold the person in custody. The U.S. Constitution formalized the importance of habeas corpus in Article I, section 9, which states: "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." [1] In the United States, habeas corpus was suspended by President Abraham Lincoln in 1863 to quell unrest related to the draft and to facilitate more military power in the Union's efforts to gain the upper hand during the Civil War. Congress also passed the Enforcement Acts in 1871 granting the President the right to suspend habeas corpus in order to combat the Ku Klux Klan during Reconstruction.

Martial law was declared in Hawaii immediately following Japan's attack on Pearl Harbor, on December 7, 1941 , and habeas corpus was also suspended as authorized by the Organic Act . The fact that martial law was never declared and habeas corpus never suspended on the mainland of the United States became a central issue in cases challenging the forced removal of Japanese Americans from the West Coast and their indefinite incarceration during World War II (see Korematsu v. United States ). The case of Mitsuye Endo , whose case became a landmark lawsuit, was initiated when lawyer James C. Purcell filed a habeas corpus petition for her immediate release from Tule Lake , and the subsequent appeals that resulted in the Supreme Court's unanimous ruling on December 18, 1944, that the government did not have the right to continue to detain a citizen who was loyal to the United States. In the related case of Duncan v. Kahanamoku , lawyers J. Garner Anthony and Osmond Fraenkel filed writs of habeas corpus on behalf of their clients to challenge the use of military tribunals in Hawai'i during the war. The Supreme Court ruled that Congress had not allowed for military tribunals under the Organic Act which authorized military rule during the war.

Authored by Cherstin M. Lyon , California State University, San Bernardino

For More Information

Anthony, J. Garner . "Hawaiian Martial Law in the Supreme Court". Yale Law Journal 57, No. 1 (1947): 27–54.

Edwards, Laura F. A Legal History of the Civil War and Reconstruction: A Nation of Rights. New York: Cambridge University Press, 2015.

Irons, Peter. Justice at War: The Story of the Japanese American Internment Cases . Berkeley: University of California Press, 1983.

Robinson, Greg. A Tragedy of Democracy: Japanese Confinement in North America New York: Columbia University Press, 2009.

Young, Ralph. Dissent: The History of an American Idea. New York: New York University Press, 2015.


  1. Chris Naylor, "'You have the body': Habeas Corpus Case Records of the U.S. Circuit Court for the District of Columbia, 1820–1863," Prologue Magazine 37.3 (Fall 2005), accessed on July 27, 2015 at http://www.archives.gov/publications/prologue/2005/fall/habeas-corpus.html .

Last updated Jan. 25, 2024, 7:35 p.m..