Access to Habeas Corpus: A Human Rights Analysis of U.S. Practices in the War on Terrorism

Abstract

The right to habeas corpus guarantees that a detained person will have access to a court with jurisdiction to rule on the legality of the detention and to order the person’s release if it is unlawful. The proper scope of this right has been the subject of much debate since the September 11, 2001, terrorist attacks, particularly with regard to persons detained by United States forces at the Guantanamo Bay Naval Base in Cuba and Bagram Air Base in Afghanistan.

This article examines the positions of the Bush and Obama Administrations on access to habeas corpus, and traces the case law of the federal courts in determining the reach of habeas corpus under American law. It examines relevant international law, including the International Covenant on Civil and Political Rights, the American Declaration of the Rights and Duties of Man, and international humanitarian law, to consider the extent to which these instruments require access to habeas corpus. The differences between the habeas corpus provisions of American domestic law and international law are highlighted.

Keywords: habeas corpus, war or terrorism, war on terror, international human rights, detention, Guantanamo Bay