Habeas corpus has been suspended four times in United States history: during the Civil War, in nine South Carolina counties during Reconstruction, in two Philippine provinces in 1905, and in the Territory of Hawaii after the attack on Pearl Harbor. A fifth effort, embedded in the Military Commissions Act of 2006, was struck down by the Supreme Court before it could take hold.
The Constitutional Rule That Limits the Count
Article I, Section 9 of the Constitution says the privilege of the writ of habeas corpus cannot be suspended unless rebellion or invasion makes suspension necessary for public safety. That is the only mention of habeas corpus in the Constitution, and it sits inside Article I, which defines the powers of Congress rather than the presidency.1Constitution Annotated. ArtI.S9.C2.1 Suspension Clause and Writ of Habeas Corpus
Two things follow from that text. Suspension is not available for a generalized emergency, an economic crisis, or political unrest that falls short of rebellion or invasion. And the power to authorize it belongs to Congress, a point Chief Justice Roger Taney pressed in Ex parte Merryman when he ruled that Lincoln could not suspend the writ on his own; Taney noted the clause contains “not the slightest reference to the executive department.”2Federal Cases. Ex parte Merryman Every suspension since has traced back to a statute.
1. The Civil War (1861–1865)
The first suspension began on April 27, 1861, when Lincoln authorized General Winfield Scott to suspend the writ along the military corridor between Philadelphia and Washington after Confederate sympathizers in Maryland attacked Union troops moving toward the capital.3U.S. Capitol – Visitor Center. Order from President Abraham Lincoln to General Winfield Scott Suspending the Writ of Habeas Corpus, April 27, 1861 Before Congress convened that July, he extended it to the Florida coast and to the corridor between Philadelphia and New York.
Congress caught up in 1863 with the Habeas Corpus Suspension Act, which authorized the President to suspend the writ throughout the entire country for the duration of the rebellion and required the Secretary of State and Secretary of War to give federal courts lists of political prisoners held by presidential order.4GovInfo. 12 Stat. 755 – An Act Relating to Habeas Corpus, and Regulating Judicial Proceedings in Certain Cases Thousands of civilians were detained under military authority during the war, from newspaper editors to suspected saboteurs, often for months without charges.
The reckoning came in 1866. In Ex parte Milligan, the Supreme Court held that civilians cannot be tried by military commissions when civilian courts are still functioning.5Oyez. Ex parte Milligan Lambdin Milligan, an Indiana resident convicted by a military tribunal, won his freedom because Indiana’s courts had stayed open throughout the war. Martial law, the Court said, applies only where war has actually destroyed civilian government.
2. South Carolina During Reconstruction (1871)
The second suspension answered Ku Klux Klan violence in the post-war South. Congress passed the Ku Klux Klan Act in April 1871, authorizing the President to use armed force and to suspend habeas corpus when organized conspiracies grew too powerful for state authorities to suppress. The act treated such conspiracies as rebellion against the United States.6U.S. Senate. The Enforcement Acts of 1870 and 1871
On October 17, 1871, President Grant issued a proclamation suspending the writ in nine South Carolina counties: Spartanburg, York, Marion, Chester, Laurens, Newberry, Fairfield, Lancaster, and Chesterfield.7The American Presidency Project. Proclamation 201 – Suspending the Writ of Habeas Corpus in Certain Counties of South Carolina Federal troops moved in and arrested hundreds of Klan members. The suspension ended by the fall of 1871 once the immediate threat subsided. It is the only time habeas corpus has been suspended specifically to protect a vulnerable population from organized domestic terrorism.
3. The Philippines (1905)
The Philippine Organic Act of 1902 gave the Governor-General power to suspend habeas corpus during rebellion or insurrection, with the approval of the Philippine Commission. The language tracked the U.S. Constitution but added “insurrection” as a third trigger alongside rebellion and invasion.8The LawPhil Project. Philippine Organic Act of 1902
Governor-General Luke E. Wright used that authority to suspend the writ in the provinces of Cavite and Batangas, where organized bands were levying forced contributions, conscripting residents, and killing those who refused. Wright’s order cited open insurrection against constituted authorities and a state of terrorism that made ordinary judicial proceedings impossible.9The LawPhil Project. G.R. No. 2808 The suspension was confined to those two provinces.
4. Hawaii After Pearl Harbor (1941–1944)
Hours after the attack on Pearl Harbor on December 7, 1941, Territorial Governor Joseph Poindexter suspended habeas corpus and handed nearly all government power to the local Army commander. Section 67 of the Hawaiian Organic Act authorized the governor to suspend the writ and impose martial law “in case of rebellion or invasion, or imminent danger thereof, when the public safety requires it,” but only “until communication can be had with the President and his decision thereon made known.”10Department of the Interior. Hawaiian Organic Act of 1900
Military rule lasted nearly three years. The military governor took on executive, legislative, and judicial authority. Civilian courts were shut down and replaced by provost courts run by military officers, and residents lived under hundreds of general orders governing curfews, labor, and daily life. The regime loosened gradually and ended on October 24, 1944.11Congress.gov. ArtII.S2.C1.1.15 Martial Law in Hawaii
In 1946, the Supreme Court decided Duncan v. Kahanamoku. Section 67, the Court held, did not authorize the military to replace civilian courts with military tribunals under the conditions that existed in Hawaii, particularly once the initial invasion threat had passed. The phrase “martial law” in the act was meant to let the military defend the islands and maintain order, not to supplant the civilian justice system.12Justia Law. Duncan v. Kahanamoku, 327 U.S. 304 (1946)
The Fifth Attempt That Didn’t Count
After Hamdan v. Rumsfeld (2006) struck down the Bush administration’s military commissions at Guantanamo,13Justia Law. Hamdan v. Rumsfeld, 548 U.S. 557 (2006) Congress passed the Military Commissions Act of 2006. A new subsection of the federal habeas statute barred any court from hearing a petition “filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.”14Office of the Law Revision Counsel. 28 USC 2241 – Power to Grant Writ
Two years later, in Boumediene v. Bush (2008), the Supreme Court held that Guantanamo detainees have a constitutional right to challenge their detention through habeas corpus because the United States exercises complete jurisdiction and control over the naval base. The MCA’s habeas-stripping provision, the Court said, “operates as an unconstitutional suspension of the writ,” and the alternative review procedures Congress had created were not an adequate substitute.15Justia Law. Boumediene v. Bush, 553 U.S. 723 (2008) Congress cannot get around the Suspension Clause, in other words, by stripping jurisdiction instead of formally suspending the writ. That is why the count stays at four.
What the Four Suspensions Share
Every successful suspension involved a genuine armed conflict or organized insurrection. Each rested on a specific congressional authorization, even when the executive acted first and got the statute afterward. And each was limited in geography or duration in at least some respect, although Hawaii’s three-year martial law stretched that idea about as far as it could go.
The courts have consistently pushed back once the immediate crisis passed. Milligan restricted military tribunals where civilian courts were open. Duncan rejected prolonged martial law in Hawaii. Boumediene blocked Congress from stripping habeas rights through jurisdictional maneuvering. No suspension has been allowed to stand once its justification faded.1Constitution Annotated. ArtI.S9.C2.1 Suspension Clause and Writ of Habeas Corpus