CREATORS: Forget Habeas Corpus at Your Own Peril

Matthew T. Mangino
CREATORS
March 10, 2026

Normally, when someone is confronted with a Latin legal term their eyes glaze over and their brain shuts down. Well, here is a Latin term you need to know — habeas corpus.

The term is a legal concept meaning "that you have the body." Known as "The Great Writ," habeas corpus has been around a long time, dating back to England's Magna Carta in 1215. It is a procedure that allows any person detained on a charge "without sufficient cause" to challenge their detention in court.

The founders included habeas corpus in Article I, Section 9 of the U.S. Constitution, "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."

In the spring of 2025, White House Deputy Chief of Staff Stephen Miller responded to a question from reporters about the Trump administration suspending habeas corpus in regard to immigration law enforcement. "The Constitution is clear and that, of course, is the supreme law of the land, that the privilege of the writ of habeas corpus could be suspended in time of invasion ... (s)o that's an option we're actively looking at."

When the Department of Homeland Security and the Department of Justice adopted a policy that made most detained immigrants who entered the country without permission — including those who had lived in the United States for years and had no criminal history — ineligible for a bond hearing, lawyers responded with habeas corpus. According to Mother Jones, habeas corpus, "once an emergency legal remedy against unlawful imprisonment ... is now an everyday tool."

The authority outlined in Article I is vested in Congress, and that includes Section 9. Suspending habeas corpus is an extraordinary response to an extreme crisis. The writ has been suspended only four times in our nation's history.

Former President Abraham Lincoln suspended habeas corpus in 1861 during the Civil War. According to the Brennan Center, that move was challenged in court and led to a constitutional showdown between the executive and judicial branches. Chief Justice Roger Taney wrote that only Congress had the power to suspend habeas corpus, not the president. It took two years to get Congress to act — but in the meantime, Lincoln never followed Taney's ruling.

The three other instances, according to the Constitution Center, include Congress granting former President Ulysses S. Grant the ability to suspend the writ during an ongoing crisis involving the Ku Klux Klan after the Civil War.

In passing the KKK Act of 1871, lawmakers made it clear that the president had authority to suspend habeas corpus within any state or territory where persons sought to "overthrow, or to put down ... the government of the United States." Grant used that authority; he deployed the 7th U.S. Cavalry to work with U.S. Marshals to detain suspected Ku Klux Klan members.

The United States had annexed the Philippines under the terms of the Treaty of Paris that ended the Spanish-American War. In 1902, Congress passed a law that allowed the writ of habeas corpus to be suspended by the president or governor if needed in the Philippines.

In 1905, the appointed Gov.Luke Edward Wright used the law to suspend the writ of habeas corpus in two provinces. Wright believed the independence forces had caused "a state of insecurity and terrorism among the people, which makes it impossible in the ordinary way to conduct preliminary investigations before justices of the peace and other judicial officers."

Hawaii was a territorial possession of the United States when Pearl Harbor was attacked by Japanese on Dec. 7, 1941. After the attack, the Territorial Governor declared martial law, and suspended habeas corpus. Two days later, former President Franklin Roosevelt approved the suspension of the writ and martial law remained in place until October 1944.

Can the president convince Congress to suspend habeas corpus for illegal immigrants or how about American citizens who smuggle drugs or sell drugs on the streets? Could Congress, at the behest of the president, suspend habeas corpus for people protesting the war in Iran or the release of the Epstein Files?

Forget habeas corpus at your own peril.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, "The Executioner's Toll," 2010, was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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