Habeas corpus is a legal principle which stands for an individual’s fundamental right to challenge their detention or imprisonment before a court of law. In common law countries like the United States and the United Kingdom, it is considered one of the cornerstone principles of the justice system, providing protection against arbitrary and unlawful imprisonment. However, in recent years, this fundamental right has been the subject of heated debates and controversies, giving rise to some significant challenges and changes in its application.

One of the current controversies surrounding habeas corpus is the question of whether non-citizens detained by the government have the right to seek its protection. This is a highly specialized issue that has been the subject of numerous court cases, with conflicting outcomes. In the United States, for example, the Supreme Court ruled in Rasul v. Bush (2004) that foreign nationals detained at Guantanamo Bay have the right to seek habeas corpus relief in federal courts. However, this decision was later undermined by the Military Commissions Act (2006), which stripped foreign detainees of this right. The issue is still being vigorously debated, with some arguing that non-citizens should not have the same rights as citizens, while others maintain that human rights are universal and should apply to all individuals.

Another controversy concerns the standard of evidence required for a detainee to invoke habeas corpus. Traditionally, the standard has been “preponderance of evidence,” meaning that the detainee only needed to provide sufficient evidence to convince the court that their detention is unlawful. However, in recent years, there has been a push for a higher standard of “clear and convincing evidence” to be applied. This means that the detainee would need to provide a higher level of proof to challenge their detention, making it more difficult to successfully invoke habeas corpus. Proponents of this change argue that it is necessary to prevent frivolous claims and protect the government’s ability to detain individuals for national security reasons. On the other hand, critics point out that this higher standard places an unreasonable burden on detainees who may not have access to necessary evidence or legal representation.

A practical example of this controversy can be seen in the case of Adel Hamad, a detainee at Guantanamo Bay who was imprisoned for over 14 years without charge or trial. In 2006, Hamad successfully invoked habeas corpus and was granted a hearing before a federal judge. However, his release was then denied due to the higher standard of “clear and convincing evidence” applied by the court. It was not until 2016 when a lower court applied the traditional “preponderance of evidence” standard that Hamad was finally released.

Additionally, the use of indefinite detention has also been a subject of controversy in relation to habeas corpus. Indefinite detention refers to the practice of detaining individuals without charge or trial, often for an indefinite period, based on suspicions of involvement in terrorism or threat to national security. The use of this practice has been defended under the Authorization for Use of Military Force (AUMF) passed by the US Congress after the 9/11 attacks. However, critics argue that this practice contradicts the very essence of habeas corpus and undermines constitutional rights. They argue that anyone detained by the government should have the right to a fair trial and due process, which is not possible under indefinite detention.

A recent example highlighting this controversy is the case of Khalid Qassim, a Yemeni national who has been held at Guantanamo Bay for over 15 years without charge or trial. Qassim’s lawyers argue that he has never been involved in any hostile activities against the United States and should be given the opportunity to challenge his detention before a court. However, the government continues to claim that he is a “lawful detainee” under AUMF and therefore not entitled to habeas corpus relief.

In conclusion, while habeas corpus is a fundamental principle of justice, its application is currently facing some challenging controversies. The question of whether non-citizens have the right to seek its protection, the standard of evidence required, and the issue of indefinite detention are all highly specialized aspects of this principle that continue to be hotly debated by legal experts and policymakers. As we navigate an ever-changing global landscape of security threats and human rights concerns, finding a balance between these competing interests will remain a vital and ongoing discussion surrounding the use of habeas corpus.