Four Cases When the Writ of Habeas Corpus Was Suspended

Recent talk in Washington about the possible suspension of the writ of habeas corpus is drawing new attention to the rare cases in American history when such drastic acts have happened.

The writ of habeas corpus—sometimes referred to as “the great writ”—under the law compels the government to show cause to a judge for the arrest or detention of any person. Article 1, Section 9, of the Constitution states 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.”

On May 9, 2025, White House Deputy Chief of Staff Stephen Miller responded to a question from reporters about the Trump administration suspending the writ in regard to immigration law enforcement. “The Constitution is clear and that, of course, is the supreme law of the land, that the privilege of the writ of habeas corpus could be suspended in time of invasion,” Miller responded. “So that’s an option we’re actively looking at.”

The great writ’s origins go back to  British common law and the signing of the Magna Carta in England in 1215, which guaranteed freedom from unlawful imprisonment. But since the Constitution went into effect in March 1789, codifying the writ and habeas rights under U.S. constitutional law, it has only been suspended four times.

President Lincoln Suspends the Writ

After the Civil War’s start, President Abraham Lincoln ordered General Winfield Scott to suspend the writ of habeas corpus near railroad lines amid fears of a rebellion in Maryland that would endanger Washington.

On May 25, 1861, federal troops arrested a Maryland planter, John Merryman, on suspicion that he was part of an armed secessionist group. Merryman was detained without a warrant and petitioned the U.S. Circuit Court for Maryland for his release. Supreme Court Chief Justice Roger Taney, serving as circuit judge, issued a writ of habeas corpus on May 26, 1861, and ordered General George Cadwalader, Fort McHenry’s commander, to appear in court along with Merryman. Cadwalader didn’t comply with the writ.

On May 28, 1861, Taney issued an oral opinion in Ex Parte Merryman, which was followed by a written opinion a few days later. Taney stated that the Constitution clearly intended for Congress, and not the president, to have to power to suspend the writ during emergencies. Lincoln didn’t respond directly or immediately to the Ex Parte Merryman decision. Instead, he waited until a July 4 address to a special session of Congress to address the issue, asking Congress to retroactively approve his actions.

After Merryman, Lincoln suspended the writ in other situations during the war, and Congress in March 1863 passed the Habeas Corpus Act to suspend the writ for the duration of the war when “the public safety may require it.” In November 1863, Lincoln issued a proclamation citing powers granted to him by Congress to suspend the writ for the war’s duration. In December 1865, after the war’s conclusion, President Andrew Johnson revoked the writ’s suspension.

President Grant Suspends the Writ in South Carolina

On April 20, 1871, Congress granted President Ulysses S. Grant the ability to suspend the writ during an ongoing crisis involving the Ku Klux Klan after the Civil War. In passing in Ku Klux Klan Act of 1871, lawmakers made it clear the statute applied within any state or territory where persons sought to “overthrow, or to put down . . . the government of the United States, or to levy war against the United States” and made it “lawful for the President of the United States, when in his judgment the public safety shall require it, to suspend the privileges of the writ of habeas corpus, to the end that such rebellion may be overthrown.”

President Grant then proclaimed on Oct. 17, 1871, that unlawful “combinations and conspiracies” existed in nine counties in South Carolina requiring that “the privileges of the writ of habeas corpus be suspended, to the end that such rebellion may be overthrown.” Grant deployed the 7th U.S. Cavalry to work with U.S. Marshals to detain suspected Ku Klux Klan members. Amos Akerman, Grant’s Attorney General, was personally involved in the trials that led to the conviction of 600 Klan members starting in late 1871. The writ’s suspension was soon phased out.

The Writ Suspended in the Philippines in 1905

The United States had annexed the Philippines under the terms of the Treaty of Paris that ended the Spanish-American War of 1898. In that era, a Filipino independence movement emerged opposed to Spanish colonial rule. With official handover of the Philippines to the United States, violence broke out between independence forces and the Americans, which soon became an extended conflict that lasted until 1902. President Theodore Roosevelt proclaimed a general amnesty that officially ended fighting on July 4, 1902, but insurrections against American forces occurred in the following years, along with other violence.

On July 2, 1902, Congress passed an act that allowed the writ of habeas corpus to be suspended if needed in the Philippines “by the President, or by the Governor, with the approval of the Philippine Commission, wherever, during such period, the necessity for such suspension shall exist."

At the time, William Howard Taft—who would later become president—headed the Philippine Commission governing the annexed territories. By January 1905, Luke Edward Wright had replaced Taft, and Wright used the powers granted to him by Congress to suspend the writ of habeas corpus in two provinces related to the activities of ladrones (or thieves). Wright believed the ladrones had caused “a state of insecurity and terrorism among the people which makes it impossible in the ordinary way to conduct preliminary investigations before justices of the peace and other judicial officers.” The writ remained suspended until October 1905.

The Writ Is Suspended Hawaii During World War II

Hawaii was a territorial possession when it was attacked by Japanese forces on Dec. 7, 1941. After the attack, Territorial Governor Joseph Poindexter declared martial law, and he suspended the writ of habeas corpus. Poindexter also transferred his powers to the local general in charge of military forces, including “all of the powers normally exercised by the judicial officers” in Hawaii.

Poindexter cited powers granted to him by Congress under Hawaii Organic Act of April 5, 1900, which transferred Hawaii’s sovereignty to the United States and established territorial rule. The act allowed the governor “[to] suspend the privilege of the writ of habeas corpus… until communication can be had with the President and his decision thereon made known.” Two days later, President Franklin Roosevelt approved Poindexter’s actions, with the writ suspended and martial law remaining in place under October 1944.

The U.S. Supreme Court considered the issue of military tribunals replacing civilian courts during the writ’s suspension in Hawaii in Duncan v. Kahanamoku (1946). Two civilian petitioners claimed they were unlawfully tried, convicted and imprisoned by military tribunals when the writ of habeas corpus had been suspended. One person was involved in a fight with two armed forces members; the other was charged with embezzling stock belonging to another civilian.

In his majority opinion, Justice Hugo Black ordered the prisoners released from custody. He believed the Hawaii Organic Act “was not intended to authorize the supplanting of courts by military tribunals.” In a dissent joined by Justice Felix Frankfurter, Justice Harold Burton felt the “discretion to determine within reasonable limits the existence of the emergency of war contemplated by the Organic Act must be an executive discretion” and the president and governor of Hawaii did not exceed their constitutional authority.

Scott Bomboy is the editor in chief of the National Constitution Center.