The origin of habeas corpus can be found in the Constitution, statutory law, and case law. The Suspension Clause of the Constitution, Art 1, Section 9, Clause 2, states: “The privileges of the Writ of Habeas Corpus shall not be suspended unless when in cases of Rebellion or of Invasion the public Safety may require it”.

Despite the fact that the Constitution does not specifically create the right to habeas corpus relief, federal statutes provide federal courts with the authority to grant habeas relief to state prisoners and to those that have been detained for violation of criminal immigration laws. Only Congress has the power to suspend the writ of habeas corpus, either by its own affirmative actions or through an express delegation to the Executive. The Executive does not have the independent authority to suspend the writ.

Federal statute, 28 U.S.C.  2241- 2256, outline the procedural aspects of federal habeas proceedings. There are two requirements for habeas review:

  • the petitioner must be in custody when the petition is filed, and

  • a prisoner who is held in state government custody must have exhausted all state remedies, including state appellate review.

Any federal court may grant a writ of habeas corpus to a petitioner who is within its jurisdiction.

In the first Judiciary Act of 1789, Congress explicitly authorized the federal courts to grant habeas relief to federal prisoners. From the time of the Civil War, the Supreme Court continuously expanded the availability of habeas relief, allowing for habeas relief to state prisoners if they were held in custody in violation of federal law.

Federal courts granted habeas relief to state prisoners by finding that the state court lacked the proper jurisdiction. Post-World War II reforms further expanded the writ and habeas corpus became a tool by which criminal defendants sought to uphold their civil rights against illegal state action.

In 1996, Congress narrowed the writ of habeas corpus through the passage of the Antiterrorism and Effective Death Penalty Act (AEDPA), which has three important aspects:

  • first, it imposes a one-year statute of limitations on habeas petitions;

  • second, unless a United States Court of Appeals gave its approval, a petitioner may not file successive habeas corpus petitions;

  • third, habeas relief is only available when the state court’s determination was “contrary to, or involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States”.

The Detainee Treatment Act of 2005 (DTA) and the Military Commissions Act of 2006 (MCM) further narrowed the scope of habeas relief, providing that prisoners held in Guantanamo Bay may not access the federal courts through habeas corpus; instead, they must go through the military commissions and then seek appeal in the D.C. Circuit Court.

The Writ of Habeas Corpus can also be used in cases of unlawful immigration law detention.

However, the Supreme Court in Boumediene v. Bush (2008) expanded the territorial reach of habeas corpus, ruling that the Suspension Clause affirmatively guaranteed the right to habeas review. Thus, alien detainees designated as enemy combatants who were held outside the U.S. had the constitutional right to habeas corpus.

Following the attacks of September 11, 2001, the legal protections of “the Great Writ” persist.