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Contemporary Topic
Understanding Terrorism Cases
What is the Role of Federal Courts in Balancing Liberties and Safety?

Background
During times of uncertainty and national crisis, often there is a conflict between liberties and safety. Sometimes liberties must yield to safety. Other times, safety must yield to liberties. The goal of the law is to find the appropriate balance between liberty and safety.

One of the most important means for ensuring this balance, as well as one of the most important means of protecting individual liberty in general, is the writ of habeas corpus. A writ of habeas corpus allows persons who believe that they have been wrongfully imprisoned to challenge the legality of their confinement. To do so, a person must petition a court to issue the writ. If the writ is issued, the court directs the person who is holding the petitioner in confinement (usually a jailor) to bring the prisoner into court and to explain the grounds for the petitioner's detention. If, after hearing both sides, the court finds that the grounds for the confinement are illegal, the petitioner is released.

The writ of habeas corpus came about as a result of the English Habeas Corpus Act of 1679, 31 Car. 2, c. 2. By the time of the American Revolution, the writ was cherished to such an extent by American colonists that it was the only British judicial writ (legal command) to be specifically mentioned in the U.S. Constitution (Article I, Section 9). Due to its role in protecting liberty, the writ of habeas corpus is known as the Great Writ.

Although they hailed it as the Great Writ, the framers of the Constitution also realized that there may be times when its application is inappropriate, for example, during times of national crisis. In pertinent part, Article I, Section 9, of the Constitution deals with this situation by saying, "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."

Despite the fact that on rare occasions throughout United States history this writ has been suspended (most notably by President Lincoln during the Civil War), it has served its purpose and, even during times of war and national crisis, provided a means for those who felt that they were unjustly imprisoned to challenge the legality of their confinements. For example, in Ex Parte Milligan (1866), Lamdin Milligan, a civilian, used the writ to successfully challenge the legality of his confinement following a conviction by a military tribunal during the Civil War. Likewise, in Ex Parte Endo (1944), Mitsuye Endo successfully used the writ to challenge the internment of persons of Japanese ancestry during World War II.

This exercise provides examples of real cases, such as Milligan and Endo, in which courts have had the difficult task of weighing the rights of individuals with the right of the state to protect itself during times of national emergency. Whether the issue is unjust imprisonment, restrictions on free speech, or the loss of property rights, each of the cases examined in this exercise demonstrates how the courts weigh these competing rights and then try to arrive at a conclusion that balances both. The purpose of this exercise is to better inform individuals of both of these competing interests so that they may understand the law in its goal of protecting one without sacrificing the other.
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