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Habeas Corpus in Times of Emergency: A Historical and Comparative View

The right to judicial review of the legality of a person’s detention, commonly known as the right to habeas corpus, serves as a critical safeguard of personal liberty. This right, which has long been considered fundamental in diverse legal systems around the world, received renewed attention in the aftermath of the September 11, 2001, terrorist attacks. The detention of suspected terrorists around the globe in response to the attacks has sparked a vigorous debate about the extent to which habeas corpus should be available in cases where the government invokes national security concerns.This debate over habeas corpus is often framed solely around the detention of “enemy combatants” by the United States at the Guantanamo Bay Naval Base and at Bagram Airfield. This narrow focus tends to overlook the fact that the tension that exists between personal liberty and national security is a universal one. A historical and comparative examination of the role of habeas corpus in situations where national security is implicated provides an important perspective for resolving this tension.This paper examines the history and purpose of habeas corpus. Although it originated as a process for compelling a person’s appearance in court, habeas corpus evolved into a legal remedy to prevent abuse of power by the crown. In this way, habeas corpus can be viewed as a milestone in the submission of the executive to the rule of law.The paper reviews historical precedents for limitations on habeas corpus in the following situations: Brazil’s suspension of habeas corpus during the political turmoil of the 1970s; Israeli application of habeas corpus to the occupied territories; habeas corpus during "The Emergency" in India; and habeas corpus in the United Kingdom and United States during the World Wars and post-September 11. It concludes by suggesting that the debate over access to habeas corpus is properly framed in terms of respect for the rule of law. As a result, grave consequences exist for any limitation on the right, even during times of emergency.