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".

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 guarantees that the "privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it," in Article I, Section 9.

United States

In the United States, a detainee may request a writ of Habeas Corpus review 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 for 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, the custodian refuses to produce the body, it is at risk of being found in contempt of court, with potential consequences leading up to and including detention for the custodian until the body is produced.

United States Attorney General Alberto Gonzales has pointed out that there is no expressed grant of habeas corpus in the Constitution. Currently, U.S. law states that the privilege may be withheld if the defendant is declared as an "enemy combatant," though recently a court claimed this was not enforceable in a ruling (possibly overreaching the court's authority).