What is habeas corpus and why might Donald Trump want to suspend it?

US President Donald Trump’s administration is “actively looking at” suspending habeas corpus, the principle that a person should be able to challenge their detention in court.

Stephen Miller, the White House deputy chief of staff, says the legal principle is a “privilege” that could be suspended to make it easier to detain and deport immigrants.

Recent court challenges by migrants and dissenting students who have been held in immigration detention centres have cited habeas corpus as a reason for their release.

But what the legal procedure does – and what could happen if it were to be suspended – is complex.

Scholars say the principle that a person should not be illegally imprisoned pre-dates the Magna Carta, and has been a cornerstone of the legal system in the UK, US and other democratic countries around the world for centuries.

Roughly translated from Latin, habeas corpus means “you should have the body” – as in, a person must be able to appear before a court so that a judge can assess if that person has been lawfully detained.

Also known as the “Great Writ of Liberty”, habeas corpus grants prisoners the right to challenge their imprisonment in a court of law.

Article One of the US Constitution states that “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”.

While this is the only time habeas corpus is mentioned in the Constitution, it has become an important part of US law – and has frequently been fought over in the courts, including the US Supreme Court.

Abraham Lincoln became the first US president to suspend habeas corpus in 1861, during the American Civil War.

That lead to a showdown with Supreme Court Chief Justice Roger Taney, who said it was Congress – not the executive branch of government – that had the power to suspend the writ.

Lincoln continued to suspend habeas corpus in specific incidences, according to the National Constitution Center, and in 1863 Congress approved suspending it for the duration of the war when “the public safety may require it”.

It was also suspended several times in the years following the Civil War, during the Reconstruction period, to quash rebellions by the white supremacist Ku Klux Klan group.

After the bombing of Pearl Harbour by the Japanese in World War Two, habeas corpus was suspended in Hawaii, which paved the way for the arrest of Japanese Americans on the island.

The courts have found that both US citizens and non-citizens have the right to habeas corpus. In 2008, the US Supreme Court extended this to include non-citizens detained in a foreign prison – such as Guantanamo Bay in Cuba.

But just because prisoners have the right to challenge their detention, it does not guarantee they will be able to leave custody.

Succeeding with a habeas corpus petition is extremely rare – most people who are detained have been detained for lawful reasons, courts have generally found.

Asadullah Haroon Gul was the first Guantanamo detainee to win a habeas corpus petition in 2021. He was transferred back to Afghanistan more than a decade after the US Supreme Court found that detainees had habeas corpus privileges.

But as Trump’s administration has ramped up arrests of illegal immigrants and student dissenters, habeas corpus has received renewed legal interest.

In April, the Supreme Court ruled that migrants being deported under Trump’s invocation of the Alien Enemies Act must be given enough notice of their removal to file petitions. It temporarily blocked some deportations in Texas for this reason.

Columbia University graduate student Mahmoud Khalil, who was detained after becoming a leading figure in pro-Palestinian campus protests, has filed his own habeas corpus petition, as he is in the middle of deportation hearings.