For centuries, in both the United Kingdom and the U.S., the writ of habeas corpus has been celebrated as a flexible and effective legal tool for challenging abuses of power.  Habeas is a cornerstone of our constitutional and common law system, and its availability maintains the delicate balance between the interests of the federal government and the rights of the individual.  In recent years, the U.S. government has tried to restrict access to habeas to prevent judicial review of its most serious abuses, both in immigration and refugee cases (under the REAL ID Act), and in cases involving the ongoing detention of terror suspects (under the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006).

Some of these efforts have been rebuffed by the courts, most notably the Rasul and Hamdan decisions of the U.S. Supreme Court, and the Al Odah decision of the U.S. District Court of D.C., supporting the right of Guantanamo Bay detainees to challenge their detentions in U.S. courts through petitions for habeas corpus.

Congress, however, has adopted legislation (the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006) seeking to overturn the Supreme Court's decisions by imposing broad restrictions on access to habeas corpus for refugees and terror suspects, and favoring a more expedited military tribunal process for Guantanamo Bay detainees.

The Supreme Court is dealing with some of these issues in the Al Odah/Boumediene cases on its October 2007 term docket. At issue in those cases is whether Congress may lawfully disregard a Constitutional provision known as the Suspension Clause, which prohibits the suspension of access to habeas corpus except in cases of rebellion or invasion, and which requires that any suspension of habeas corpus be replaced with an alternative form of judicial review that provides "adequate and equivalent" legal protections. Petitioners in those cases argue that Congress's Military Commissions Act of 2006 unconstitutionally restricts access to habeas corpus, because the alternative to habeas corpus that Congress provided -- the military commissions authorized by the Detainee Treatment Act of 2005 and the appeals process created by the Pentagon -- are far from "adequate and equivalent." 

Human Rights USA has taken the leading role in challenging “habeas stripping” in several refugee and terrorism cases. We were the first group to recognize the problem and to file challenges to habeas-stripping provisions in both the refugee and terrorism contexts. Thus far, however, the courts have exhibited considerable reluctance to reach the core constitutional issues that pertain to the Suspension Clause. Courts prefer, instead, to sidestep these issues, or to hold off by focusing on other matters, until the adequacy and effectiveness of “alternative mechanisms” for judicial review can be assessed. That is the status of the great majority of terrorism cases right now – on hold until the cases can be tested under other forms of judicial review that were established as alternatives to habeas. Human Rights USA is researching ways to effectively bring these challenges to habeas-stripping to the fore. 

For more information about how we've worked to preserve access to habeas corpus in the anti-terrorism context, please visit our section on Protecting Habeas Corpus .