Habeas corpus

A citizen's right to habeas corpus is their right to challenge the government to present a reason for her criminal or civil detention. This right was first secured by British citizens against their King with the signing of the Magna Carta, a document upon which all Western democracy is based, and upon which the Founding Fathers of the United States of America heavily relied.

In Latin, the phrase translates roughly as "[we order that] you produce the body". In the United States, a detainee may request a writ of Habeas Corpus with any court that has jurisdication. If accepted by the court, the judge issues a writ of Habeas Corpus ordering the individual with custody of the detainee to produce the detainee at a hearing. During the hearing, the judge reviews the lawfulness of the detention, and if found unlawful, orders the detainee released. If, before the hearing, those with custody refuse to produce the body, it is at the risk of being found in contempt of court, and with consequences leading up to and including detention for the custodian.

The right to habeas corpus is phrased as a writ, making reference to the arcane system of writs by which legal claims were adjudicated prior to the 1900s (e.g., the "writ of replevin," or "writ of mandamus"). Thus, the right is referred to as "the writ of habeas corpus," or, "the Great Writ."

The United States Constitution mentions the right in Article I, Section 9.

Controversial Interpretation

United States Attorney General Alberto Gonzales has pointed out that there is no expressed grant of habeas corpus in the Constitution. However, Gonzales's interpretation has no binding authority on the courts.