Habeas Corpus and Government Detention

On May 21, 2025, the Congressional Study Group on Foreign Relations and National Security held a virtual discussion on the role of habeas corpus and the limits it sets on government detention. The Trump administration has detained and removed foreign nationals from the country—and, in some cases, continued to detain them overseas—under a number of contested legal theories. As those affected have begun to challenge these actions, these efforts have increasingly come to center on one longstanding legal principle incorporated into the Constitution—that of habeas corpus—whose limits have arguably not been tested in this way since the detention of terrorism suspects following the Sept. 11 attacks.

The study group was joined by two experts for this session, who were led in an opening discussion by coordinator Scott R. Anderson:

• Amanda Tyler, a professor of law at the University of California Berkeley School of Law and author of the book “Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay”; and
• Steve Vladeck, a professor of law at Georgetown University law Center, proprietor of the One Firstnewsletter on the Supreme Court, and author of the book “The Shadow Docket.”

Prior to the discussion, the study group circulated the following background readings:

• Steve Vladeck, “Suspending Habeas Corpus,” One First (May 9, 2025);
• Jonathan Hafetz, “Habeas and the Alien Enemies Act: Challenges and Opportunities,” Lawfare (Apr. 15, 2025); and
• Amanda Tyler, “Jurisdiction and Remedy in J.G.G. v. Trump,” Lawfare (Mar. 28, 2025).

The session began with an exploration of the historical origins of habeas corpus and its role in the U.S. Constitution. Tyler traced the writ’s development to its roots in English common law, highlighting its foundational role in safeguarding individual liberty against unlawful detention. She explained that the principles established by the Magna Carta of 1215, particularly the protection against arbitrary detention, laid the groundwork for the writ. Over time, especially in the 17th century, habeas corpus became increasingly tied to broader due process protections, evolving into a key legal safeguard in Anglo-American law.

Tyler highlighted that the U.S. framers of the Constitution were heavily influenced by this tradition. She noted that the Suspension Clause in Article I of the Constitution enshrined the privilege of habeas corpus and placed strict limitations on its suspension, making it a cornerstone of American liberty.

The discussion then shifted to habeas corpus in the modern context, particularly as it pertains to extraterritorial detentions and national security concerns. The panel examined the complexities surrounding habeas corpus, especially in the era following the Sept. 11 attacks, with a focus on the detention of terrorism suspects at Guantanamo Bay. Vladeck pointed out that applying habeas corpus to detainees held outside U.S. territory has become contentious. He emphasized the limitations of Supreme Court rulings in this area, particularly when it comes to the scope of habeas corpus for non-citizens held abroad under national security pretexts.

The panelists discussed the challenges of balancing national security concerns with constitutional protections. They explained that while habeas corpus is a fundamental right, its application in the context of the War on Terror and the indefinite detention of non-citizens has tested its limits. The debate centered on how the U.S. courts, and particularly the Supreme Court, have grappled with these tensions and the evolving scope of habeas corpus. The experts also discussed the role of Congress in potentially defining the parameters of habeas corpus and the legal challenges of regulating detention practices in such complex circumstances.

The session concluded with a look toward the future of habeas corpus in U.S. national security policy. The panelists agreed that maintaining judicial oversight over detentions is crucial, but noted that the increasingly complex nature of modern warfare, terrorism, and international detention practices complicates the application of habeas corpus. They underscored the need for clear legal frameworks that balance national security with individual rights and the importance of continued judicial engagement to protect the constitutional principles embedded in habeas corpus.

From there, the study group moved into open discussion, where attendees were free to ask questions and respond to the issues raised during the session.