The Civil War Connections Blog

Then & Now: Habeas Corpus

For all of you that skipped that day of Latin class habeas corpus literally means “you have the body.”  In the modern legal world the phrase usually refers to the writ of habeas corpus which gives the right to an individual that has been detained to appear before a court (view a full definition and history here).  The most common discussion of the writ is often when it is suspended.  The United States has a long history of suspending the writ of habeas corpus during war times and detaining suspects without probable cause or a trial.


Some people refer to Abraham Lincoln as the Great Emancipator, but those arrested and detained illegally during the Civil War would probably find this pseudonym quite ironic. In 1861 Lincoln unofficially suspended the writ of habeas corpus to protect Washington D.C. from the Confederates.  Lincoln later wrote a Proclamation Suspending the Writ of Habeas Corpus in September 1862; I guess you could call it the Anti-Emancipation Proclamation (apologies for the lame history joke). Lincoln’s decisions were put on trial at the Supreme Court in 1866 and the court gave the following decision:

The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority.

This case is famously known as the Ex parte Milligan case.  Milligan was arrested and put on trial by a military tribunal, instead of a regular trial by jury which is specified by the Constitution.  This is not the only trial reviewed by the Supreme Court involving Lincoln’s suspension of habeas corpus.


Lincoln was not the only president during the Civil War to suspend the writ of habeas corpus.  President of the Confederacy Jefferson Davis instated martial law and suspended the writ of the habeas corpus in February of 1862, 7 months before Lincoln’s proclamation.


So surely in 150 years the United States would have changed enough so that people’s rights were being protected even during war times; although that seems not to be the case.



In 2008 a Supreme Court case involving George W. Bush, habeas corpus, and Guantanamo Bay, the court made a very similar decision to the decision made in the 1866 case. The case is known as Boumediene v. Bush, in this case the Supreme Court granted detainees the rights to habeas corpus after the Military Commission Act of 2006 had said that detainees that appeared in front of a military council had no right to habaes corpus.


In January CNN reported that President Obama had singed new laws dealing with the writ of habeas corpus.  The article says that this new law “reaffirms the executive’s authority to detain anyone determined to be a member of al Qaeda, the Taliban or associated forces ‘without trial until the end of hostilities.’”


Both Lincoln and Bush were in office while the United States was attacked and the public feared for its safety, which under the Constitution would give them to right to suspend the writ of habeas corpus.  Also in both cases the Supreme Court used their powers to over rule the executive decisions.  Whether you agree or disagree with the suspension of individual rights at a time of war it  is undeniably interesting that the topic is still being debating  150 years later.


Share your thoughts in the comment section.





Encyclopedia of the American Civil War, David Stephen H, p 441