Read Will Scharf’s Confidential Habeas Corpus Memo

1871, pursuant to the Ku Klux Klan Act, Grant declared martial law and suspended habeas corpus in nine hill counties of South Carolina, where the Klan was particularly intractable.

IV.

World War II

Habeas corpus rights were tested in two important contexts during World War II.

A. Hawaii

First, at the outset of hostilities with Japan, the Governor of Hawaii, then a territory, declared martial law and suspended habeas corpus, acting pursuant to the Hawaiian Organic Act. In 1946, the Supreme Court decided Duncan v. Kahanamoku, a challenge by a civilian against his arrest and conviction by a military tribunal. The Court ruled that the suspension of habeas rights and the trial were improper, because civilian courts in Hawaii were operating at the time of his conviction.

B. German saboteurs

Second, and more important, was the case of the trial of German saboteurs by military commission, which reached the Supreme Court as Ex Parte Quirin. In December 1941, eight German agents, including two U.S. citizens, were carried by U-boat across the Atlantic and landed on Long Island in New York and on Ponte Vedra Beach in Florida. Two turned themselves in to the FBI. The remainder were captured.

President Roosevelt, acting by executive order, established a military tribunal to prosecute the eight. All were convicted and sentenced to death, although President Roosevelt commuted the sentences of the two who had surrendered, leaving the other six to be executed.

The Supreme Court reviewed the constitutionality of the military tribunal, and held that it was allowable because of the specific nature of the defendants and the crimes alleged. Because they were unlawful enemy combatants in a time of war, they were subject to the jurisdiction and judgment of military tribunals, and even for the American citizens in the group the writ of habeas corpus was unavailable. The Supreme Court rested its opinion in part on the fact that, through its declaration of war, Congress had authorized the application of the laws of war to enemy combatants, effectively suspending any habeas rights for this class of individuals that would otherwise have existed.

V.

Global War on Terror

After the invasion of Afghanistan in October 2001, the United States began holding detainees at Camp X-Ray, Naval Station Guantanamo Bay. In 2002, some of these detainees began filing