Article 1, Section 9 of the U.S. Constitution reads as follows:
"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."
Habeus corpus is a protection for U.S. citizens who are arrested and imprisoned without being properly processed through the criminal justice system. Any U.S. citizen can petition the courts for relief from confinement if there is well-founded reason to believe the indivdual is being held without due process of law. Suspension of the writ of habeas corpus by the government has occurred twice in the nation's history: President Lincoln's during the Civil War, and President Bush following the terrorist attacks of September 11, 2001.
The handling of terrorist suspects following the 2001 attacks has been one of the most divisive issues to result from that fateful day. Civil libertarians and others argued against the suspension of habeas corpus, even for foreign terrorists arrested overseas and brought to the U.S. military base at Guantanamo Bay, Cuba. Their philosophical and legal opponents have argued that such suspects are not American citizens, and not common criminals, such as were envisioned by the drafters of the U.S. Constitution. To quote from an article written by retired Marine Corps Officer and military lawyer:
"In U.S. history, aliens held by our military forces in foreign territory have not been entitled to the civilian remedy of habeas corpus in the Federal Courts because these courts had no jurisdiction over the land on which they were being held. As the Supreme Court explained over 50 years ago in Johnson v. Eisentrager,1 'we are cited to no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an enemy alien who, at no relevant time and in no stage of his captivity, has been within the territorial jurisdiction." [Col. Jason P. Terry, "Habeas Corpus and the Detention of Enemy Combatants in the War on Terror," Joint Forces Quarterly, 1st Quarter, 2008]
The use of the military facility at Guantamo Bay was intended to ensure that the terrorist suspects were securely in U.S. custody, while remaining geographically outside U.S. borders. A weakness in that argument, however, is that fact that U.S. military installations in foreign countries are frequently considered U.S. territory for legal purposes.
A leading opponent of the position quoted above is President Obama, who campaigned on a pledge of restoring habeas corpus rights to terrorist suspects:
"By giving suspects a chance...to challenge the terms of their detention in court, to have a judge confirm that the Government has detained the right person for the right suspicions, we could solve this problem without harming our efforts in the war on terror one bit." [then-Senator Obama speech on the Senate floor, 2006]
A major case involving enemy combatants/terror suspects/criminals is that of Khalid Sheikh Mohammed (KSM), the alleged -- but self-described -- mastermind of the 9/11 attacks, whose lawyers had petitioned courts in the U.S. for a writ of habeas corpus. Many in Congress, the military, and various national security-related agencies wanted KSM tried by a military commission outside of the United States. Civil libertarians and the president wanted him tried in the U.S. in a civilian court. Congress passed legislation blocking KSM's transfer to a civilian court, and he remains at Guantanamo Bay.