Habeas Corpus ad subjiciendum—roughly "produce the person to be subjected to examination"- defines the core principle of the western rule of law and liberty; the writ of habeas corpus, also known traditionally as the "Great Writ," forces officials to prove in court that they have just cause to keep a prisoner in custody. Civil libertarian and legal philosopher Zechariah Chafee of Harvard University famously called this protection against indefinite arbitrary imprisonment without charges "the most important human right in the constitution." To the founders, the privilege of habeas corpus was so fundamental a rule that the only reference in the constitution is a negative exception, the rare case in which habeas corpus could be suspended; according to the "suspension clause," Article I, Section 9, "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." (Emphasis added)

Habeas corpus was not suspended in the wake of the September 11, 2001 attacks, and despite the opposition of the Bush Administration and Congress, the Supreme Court eventually ruled in 2008 that the prisoners at Guantanamo Bay in Cuba were entitled to submit habeas corpus petitions. But September 11 shook prevailing notions of American security and civil liberties, and led to renewed concern about this fundamental right. The ramifications of suspending habeas corpus, as a 2010 study concluded, "are almost unfathomable. For example, during a suspension, there would seem to be absolutely no way, either legally or practically, to stop the President from throwing all Jews, all Irish-Americans, or all Democrats in jail." The ultimate problem is that the Suspension Clause and the Due Process clause are "wholly irreconcilable."

Since 1789 habeas corpus has been suspended on only four occasions in American history; the last being in the Territory of Hawaii after the attack on Pearl Harbor in 1941. The only nationwide suspension of habeas corpus occurred during the Civil War, which prompted a constitutional and political crisis between Lincoln and Congress, because nowhere does the constitution explicitly state which branch has the authority to issue the suspension.

Most state constitutions closely followed the federal formula, except Virginia and Vermont, which stated that the writ of habeas corpus could never be suspended. In response to Lincoln’s actions other states adopted an anti-suspension policy in new constitutions after the Civil War, including four readmitted states, and three border states: Maryland (1867), Louisiana (1868), North Carolina (1868), West Virginia (1872), Alabama (1875), Missouri (1875), and Texas (1876).

At the time of the Alaska Constitutional Convention, the clear and present danger was the threat of a Soviet attack and the debates reveal the impact of the Cold War on the thinking of the delegates. When Delegate Vic Rivers questioned the need for a suspension clause he cited the 1907 Oklahoma Constitution as his model, which stated-like many other post Civil War constitutions- "The privilege of the writ of habeas corpus shall never be suspended by the authorities of this State."

The proposed amendment under consideration for the Alaska Constitution in January 1956 said that the privilege of the writ of habeas corpus could be suspended in case of rebellion, invasion "or imminent peril," and Vic Rivers wanted the delegates to go on record and explain what was meant by "imminent peril." Delegate Awes explained that the Bill of Rights Committee had taken the phrase "imminent peril" from a decision of the U.S. Supreme Court, reasoning that "under the modern conditions of warfare that you sometimes have to act when you are in ‘imminent peril’ but when the rebellion or invasion actually occurs, it might be too late."

When Vic Fischer tried to narrow the grounds of "imminent peril," so that the "imminent peril of strikes, imminent peril of famine, imminent peril of anything" could not trigger the suspension clause, John Hellenthal objected. "Well I can understand why Oklahoma will not permit the suspension of the writ of habeas corpus," Hellenthal said. "It’s right in the heart of the United States...and the possibility of an invading army in the old days of warfare ever bothering Oklahoma was highly improbable." Alaska however, was "in the jaws of death," Hellenthal pleaded, only minutes from the U.S.S.R., and the danger of an almost instantaneous atomic attack dictated a different standard. He claimed that it was foolish to adopt "an old-fashioned, cave man notion of suspension of the writ of habeas corpus in this modern age," because next time there would be no warning in case of an attack.


We all know that the next war will take the form of fifth columnists.
There will be no formal invasion. There will be no marching armies.
The illustration they commonly give is the illustration of a ship slinking
into a harbor with an atomic bomb somewhere in its hold….
Imminent peril. There will be provocateurs, spies, Fifth Columnists,
agents throughout the country, infiltrations. That’s why we have
the Alaska Guard organized. That’s what we’re concerned with,
those things amount to "imminent peril" and I say that when
that day comes and when that "imminent peril" exists the
courts will recognize it, and we should recognize it in our
modern constitution.

At the center of the debate was whether the threat of an invasion, not an actual invasion, was sufficient to repeal the rule of law, even though during the famous contest over habeas corpus during the Civil War, Ex Parte Milligan the Supreme Court had ruled that the suspension of habeas corpus "cannot arise from a threatened invasion. The necessity must be actual and present, the invasion real, such as effectually closes the courts and deposes the civil administration."

Delegate Barr believed the possible infiltration of spies could render Alaska’s defenses useless. "I don't think," he said, "that we should tie…the words ‘imminent peril’ down to invasion only." Delegate Kilcher on the other hand wanted a far more restrictive definition. "It is patent to me," Kilcher said, "that the clause ‘imminent peril’ in times of turmoil, political restlessness, and so on, can be abused and can be construed to mean almost anything." Kilcher argued that the only grounds for suspension should be an actual rebellion or invasion, because "the imminent peril clause…is dangerous and should be stricken."

Kilcher’s argument carried the day and the delegates deleted "imminent peril," substituting "actual or imminent invasion" as grounds for the suspension of habeas corpus. In 2000 an Alaska Appeals Court ruling about a habeas corpus petition explained that the phrasing of the Alaska suspension clause had been crafted in 1956 to "deal with the possibility that an enemy might attack and subjugate Alaska by bombs and missiles, before any foreign troops physically invaded the state." So while most states allow for the suspension of habeas corpus due to insurrection, rebellion or invasion, Alaska’s Constitution, written at the height of the Cold War, remains the only one in America where "imminent invasion" is sufficient to declare martial law and to repeal the privileges of the "Great Writ."