The Privilege of the Writ: The Supreme Court and Post-9/11 Detainee Habeas Corpus Entitlement

14 Pages Posted: 6 Sep 2010 Last revised: 8 Sep 2010

Date Written: August 24, 2010


Habeas corpus is the right to challenge one’s detention in a court of law. With deep roots in common law, it is promulgated in U.S. law by the Constitution’s single sentence known as the Suspension Clause. Prior to 9/11, habeas corpus jurisprudence erected a framework of entitlements that vary according to a person’s location, citizenship, and alleged crimes. Plotted on a timeline of American history, many of the landmark cases that progressively articulated this framework are clustered around wartime, and the entitlement conventions that obtained reflected the terminology of traditional warfare. After 9/11, as the nature of warfare and enemies evolved, and the Executive claimed unprecedented authority to detain enemy combatants, Guantanamo Bay became the extraterritorial detention facility of choice. Beginning in 2004, the Supreme Court responded with a series of cases that created a minimal but definite foundation of habeas corpus entitlement and due process for Guantanamo detainees. This article looks primarily at these post-9/11 cases, the traditional notions of habeas corpus upon which they are predicated, and the possible shortcomings they evidence relative to Guantanamo and to other extraterritorial detention facilities.

Keywords: Habeas corpus, 9/11, Guantanamo, detainee rights, enemy combatants, due process, detention

JEL Classification: K00, K10, K40

Suggested Citation

Modjeska, Jeremy, The Privilege of the Writ: The Supreme Court and Post-9/11 Detainee Habeas Corpus Entitlement (August 24, 2010). Available at SSRN: or

Jeremy Modjeska (Contact Author)

Washington State University ( email )

Wilson Rd.
College of Business
Pullman, WA 99164
United States

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