Interpretation & Debate

The Suspension Clause

Matters of Debate

Common Interpretation

by Amy Barrett

Circuit Judge of the United States Court of Appeals for the Seventh Circuit; Professor of Law at the University of Notre Dame Law School

by Neal K. Katyal

Paul and Patricia Saunders Professor of National Security Law at Georgetown University Law Center; Partner at Hogan Lovells

The Suspension Clause protects liberty by protecting the privilege of the writ of habeas corpus. It provides that the federal government may not suspend this privilege except in extraordinary circumstances: when a rebellion or invasion occurs and the public safety requires it. 

Appreciating the significance of this restraint first requires understanding the writ of habeas corpus. This writ, which Americans imported into the Constitution from English common law, is a means by which a prisoner can test the legality of her detention. A person who believes she is being imprisoned illegally can file a petition asking a judge to issue a writ of habeas corpus. When a prisoner files a petition for a writ of habeas corpus, her custodian must explain why the restraint is lawful. If the explanation does not satisfy the court, it will order the custodian to release her. The writ is thus a crucial means by which a prisoner can obtain freedom.

Today, the writ of habeas corpus is primarily used by those serving prison sentences to challenge the legality of the process that resulted in their conviction. Historically, however, the writ was primarily used by those imprisoned without judicial process. Early Americans were keenly aware that monarchs of England had sometimes jailed people indefinitely without charging or trying them in court. Although the writ of habeas corpus existed, the king often ignored it. To protect against such abuse, Parliament enacted the Habeas Corpus Act of 1679 to ensure that the king released prisoners when the law did not justify confining them. This “Great Writ” guaranteed prisoners held on authority of the crown the right to invoke the protection of the judicial process. 

The founding generation valued the Great Writ because they had this history in mind. Yet those who framed and ratified the Constitution also believed that in times of crisis, the executive might need leeway to hold suspects without answering to a court. Parliament had suspended the writ during the seventeenth and eighteenth centuries when it concluded that the king needed expanded detention power to contain threats. Similarly, several states had equipped their governors with emergency power by suspending the writ during the Revolutionary War. Pre-ratification practice thus embraced both the importance of the writ and the need for a safety valve.

The Suspension Clause follows in this tradition. It protects the writ by imposing a general bar on its suspension. At the same time, it makes an exception for cases when an invasion or rebellion endangers the public safety. A suspension is temporary, but the power it confers is extraordinary. When a suspension is in effect, the president, typically acting through subordinates, can imprison people indefinitely without any judicial check.

The Clause does not specify which branch of government has the authority to suspend the privilege of the writ, but most agree that only Congress can do it. President Abraham Lincoln provoked controversy by suspending the privilege of his own accord during the Civil War, but Congress largely extinguished challenges to his authority by enacting a statute permitting suspension. On every other occasion, the executive has proceeded only after first securing congressional authorization. The writ of habeas corpus has been suspended four times since the Constitution was ratified: throughout the entire country during the Civil War; in eleven South Carolina counties overrun by the Ku Klux Klan during Reconstruction; in two provinces of the Philippines during a 1905 insurrection; and in Hawaii after the bombing of Pearl Harbor.

The most hotly debated questions concerning the Suspension Clause involve its effect in the absence of a formal suspension. 

A threshold question is whether the Clause simply restrains Congress’s ability to suspend whatever habeas jurisdiction is currently on the books, or whether the Clause grants an affirmative right to habeas review (or an adequate substitute for it). On the one hand, the Clause’s general bar on suspension assumes that some access to habeas relief will exist when the privilege of the writ has not been suspended. On the other hand, as Chief Justice Marshall noted in Ex Parte Bollman (1807) the Clause does not itself expressly guarantee that access. The Court seems to have resolved this dispute in Boumediene v. Bush (2008), where it held that the Clause does not simply restrain Congress’s ability to suspend existing habeas statutes but affirmatively guarantees prisoners some forum in which they can challenge the legality of their detention. Also in Boumediene, the Court decided—to much controversy—that habeas jurisdiction extends to prisoners detained outside the United States at Guantanamo Bay. 

In recent years, the writ is most commonly sought by convicted defendants in state prison. Each year, over 18,000 petitions for the writ of habeas corpus are filed in federal court by state prisoners against their prison wardens. But a very slim fraction of those petitions are actually successful, in part due to the limits Congress placed on federal courts reviewing habeas petitions when it enacted the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). AEDPA significantly limited federal courts’ power to grant habeas relief for state prisoners.

The questions about the scope of and limits on the Great Writ are far from settled. Both the Supreme Court’s Guantanamo decisions and AEDPA remain controversial, as we grapple with the Founders’ vision of the writ and the proper balance to strike between liberty and security.

The Scope of the Suspension Clause

by Amy Barrett

Circuit Judge of the United States Court of Appeals for the Seventh Circuit; Professor of Law at the University of Notre Dame Law School

American citizens held by the United States have the right to seek the writ of habeas corpus whether they are held at home or abroad. Noncitizens held within the United States also have a right to seek the writ. Boumediene v. Bush (2008) extends the right to a third category of detainees: noncitizens held outside the territorial jurisdiction of the United States. The case is controversial because its holding, which has significant implications for national security, is contrary to precedent and unsupported by the Constitution’s text and history. 

Boumediene was not the first case in which the Supreme Court confronted the argument that a noncitizen enemy held abroad is entitled to seek a writ of habeas corpus in an American court. In Johnson v. Eisentrager (1950), a case decided in the wake of World War II, twenty-one German citizens held in an American military facility in Germany petitioned for the writ, maintaining that their detentions violated both the United States Constitution and international law. The Supreme Court held that American courts lacked authority to entertain these petitions. It observed that the constitutional text did not expressly confer such a right, and that no court in history had ever issued a writ of habeas corpus on behalf of a noncitizen held captive outside the territorial jurisdiction of the United States.   

Boumediene abandoned Eisentrager’s bright-line test based on sovereignty and citizenship in favor of a multi-factor test that extends habeas jurisdiction to locations where courts think it reasonable to do so. In Boumediene, the Court asserted that the U.S. Constitution grants noncitizens imprisoned in Guantanamo Bay, which is in the sovereign territory of Cuba, the right to seek habeas corpus in federal court. Its conclusion rested on three considerations: (1) the fact that the detainees disputed their status as enemy combatants; (2) the Court’s determination that the United States has functional control over Guantanamo Bay; and (3) its judgment that forcing the military to participate in habeas proceedings would not compromise national security. It then held that the Military Commissions Act, which permitted petitioners to challenge the legality of their detention in military tribunals but not federal habeas proceedings, was unconstitutional.

Reasonable people disagree about the wisdom of empowering the judiciary to second-guess the military’s decision, often made on the battlefield, to classify a prisoner as an enemy combatant. Boumediene, however, was not about choosing sides in that policy debate; it was about determining what the Suspension Clause required. The Court struggled to justify its new rule as one imposed by the Constitution. Because the text of the Suspension Clause does not specify the scope of the protected habeas right, the Court has always defined it with reference to history. And the Boumediene Court conceded that the historical record fails to establish that courts had ever entertained habeas petitions filed by noncitizens held in other countries. The dissenters, who maintained that the Suspension Clause did not override Congress’s choice to deny federal jurisdiction, had the better of the argument.  

Whether Boumediene is right or wrong, it dealt with the core office of the writ: testing the legality of executive detention. The application of the Suspension Clause in the post-conviction context is much less certain. Because habeas was not a tool for obtaining post-conviction relief at the time the Constitution was ratified, the founding generation could not have understood the Clause to protect this use of the writ. Congress made post-conviction relief for state prisoners available in the late nineteenth century. Even if legislative expansions of the writ ratchet up the protection offered by the Clause—a proposition that the Court has never squarely embraced—Congress surely has more flexibility to shape jurisdiction here than it does in the executive detention context.

The Suspension Clause

by Neal K. Katyal

Paul and Patricia Saunders Professor of National Security Law at Georgetown University Law Center; Partner at Hogan Lovells

A View on Congress’s Power to Limit the Writ of Habeas Corpus

Over the past two decades, Congress has made several efforts to limit the availability of the writ of habeas corpus. In 1996, it passed the Anti-Terrorism and Effective Death Penalty Act (AEDPA), which prevented prisoners from filing multiple habeas petitions and mandated a deferential standard of review of state court decisions. And in 2006, Congress stripped from the federal courts the power to grant habeas relief to enemy combatants imprisoned outside the United States. These laws present difficult and controversial constitutional questions. Does the writ extend outside the territory of the United States? How much deference should the courts give Congress and the executive in determining the scope of habeas relief, especially in national security cases? I argue that Congress has the authority to regulate the availability of habeas corpus relief through laws like AEDPA so long as they afford prisoners with plausible innocence claims an opportunity for relief, but that Congress does not have the authority to withhold habeas relief from combatants detained at prisons like Guantanamo Bay that are under complete U.S. government control.

Anti-Terrorism and Effective Death Penalty Act (AEDPA)

AEDPA had two principal effects on the availability of habeas relief. First, it imposed procedural limits on habeas petitions, including a one-year statute of limitations and a bar on successive petitions. See 28 U.S.C. § 2244.  Second, it required federal courts to employ a deferential standard of review when reviewing state court decisions. See 28 U.S.C. § 2254.

I believe that AEDPA, at least as drafted by Congress, appropriately sets the contours for habeas relief. My perspective is informed by the influential views of the great Judge Henry Friendly. To Judge Friendly, the core of habeas corpus relief concerns prisoners with colorable claims of innocence. Accordingly, Judge Friendly believed that Congress could enact procedural and substantive limits on the availability of habeas relief. AEDPA codifies such limits. Moreover, AEDPA largely preserves what Judge Friendly believed to be the essential function of habeas: ensuring that the innocent have an opportunity to vindicate their claims in a federal court. See Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142 (1970).

In interpreting AEDPA, the Supreme Court has at times vindicated the innocence view and at times threatened it. In McQuiggin v. Perkins (2013), the Court correctly allowed an exception to AEDPA’s one-year statute of limitations for prisoners with a strong claim of innocence. In other cases such as Woods v. Etherton (2016), however, the Supreme Court has elevated the standard for habeas relief so as to make it nearly impossible for prisoners, even innocent ones, to obtain relief. So while I believe AEDPA as a general matter is consistent with the Constitution, I harbor concerns about the deferential standard of review of state court decisions mandated by the Supreme Court.

Congressional Limits on the Extraterritorial Scope of Habeas Corpus

In response to Supreme Court decisions holding that the great writ was available to certain enemy combatants detained during the War on Terror, Congress passed the Military Commissions Act (MCA) in 2006. The MCA stripped U.S. courts of the power to consider habeas petitions for enemy combatants held outside the United States. Two years later, the Court held the MCA unconstitutional as applied to combatants detained at Guantanamo Bay in Boumediene v. Bush (2008). In reaching this conclusion, the Court balanced three main factors: (1) the citizenship and status of the detainee; (2) the nature of the sites of apprehension and detention; and (3) the practical obstacles in resolving prisoner’s entitlement to the writ. With regard to Guantanamo, these factors leaned in favor of the availability of habeas relief. In particular, the Court noted that the U.S. government exercised complete and total control over the prison.

In 2010, the D.C. Circuit Court of Appeals reached the opposite conclusion with respect to enemy combatants held at the Bagram Air Base in Afghanistan in Al Maqaleh v. Gates. Applying the Court’s three-part test, it concluded that the combatants were not constitutionally entitled to file habeas petitions in U.S. courts. In reaching this conclusion, the court noted that the combatants were detained, quite literally, in a war zone, and this reality posed immense “practical obstacles” to allowing habeas proceedings in U.S. courts.

In my view, these decisions strike the right balance between preserving the writ as a check on government authority and safeguard of personal liberty while giving the executive branch space to operate in times of war. 

Matters of Debate
The Constitution