Ten Things You Should Know About Habeas Corpus

May 17, 2007

Download a copy of the brief here

In 2005 and again in 2006, Congress passed the Detainee Treatment Act and the Military Commissions Act, restricting habeas corpus rights for “enemy combatants.”  As the struggle against terrorism presses on, Americans have a simple choice to make:  During wartime, does the president of the United States have to abide by the Constitution and be subject to oversight by Congress and the judicial branch?  Or, is the president above the law, answering to no one?  Jonathan Hafetz's Ten Things You Should Know About Habeas Corpus seeks to help answer these questions by explaining the facts and correcting the misperceptions surrounding habeas corpus.


1. Habeas corpus is a cornerstone of American law.

2. Post 9/11 legislation creates unprecedented restrictions on habeas rights.

3. Habeas protections extend to foreign nationals.

4. The Supreme Court has made it clear that habeas extends to alleged "enemy combatants."

5.  Habeas protections are more—not less—essential during the kind of indeterminate conflict in which we are now engaged.

6. Habeas petitions are not frivolous prisoner conditions suits.

7. Habeas corpus strengthens national security by giving legitimacy to the fight against terrorism.

8. The federal courts can handle classified evidentiary issues in habeas cases.

9. Congress has not created an adequate substitute for habeas corpus.

10. Congressional action is the most effective way to restore habeas corpus.


"In common law, habeas corpus, (Latin: [We command that] you have the body) is the name of a legal action or writ by means of which detaineess can seek relief from unlawful imprisonment.  Historically, the writ of habeas corpus has been an instrument for safeguarding individual freedom against arbitrary state action."

"Alexander Hamilton declared habeas corpus a 'bulwark' of individual liberty, calling secret imprisonment the most 'dangerous engine of arbitrary government.'" 

"The executive has never before claimed the power to eliminate habeas corpus without finding that the public safety required it."


Jonathan Hafetz focuses on a range of post-September 11 detention issues, government secrecy, and immigrants' rights. Before coming to the Brennan Center, Mr. Hafetz was a John J. Gibbons Fellow in Public Interest and Constitutional Law at Gibbons, Del Deo, Dolan, Griffinger & Vecchione, P.C., and an attorney at the ACLU Immigrants' Rights Project. Mr. Hafetz clerked for Judge Sandra L. Lynch of the U.S Court of Appeals for the First Circuit and Judge Jed S. Rakoff of the U.S. District Court for the Southern District of New York. He received his J.D. from Yale Law School, where he received honors for his advocacy and scholarship, and a B.A. from Amherst College, where he graduated Phi Beta Kappa and magna cum laude. Mr. Hafetz also holds a masters degree in history with high honors from Oxford University and served as a Fulbright scholar in Mexico. He is the author of numerous articles in scholarly and popular publications, including the Yale Law Journal, California Western Law Review, and Fordham Journal of International Law, Legal Affairs, and the New York Law Journal. He also frequently serves as an expert commentator for television and radio on liberty and national security issues.