Tuesday, June 18, 2013

The Paradox of Habeas Corpus

The Paradox of Habeas Corpus:

The Power of Habeas Corpus in America: From the King's
Prerogative to the War on Terror
, by Anthony Gregory,
Cambridge University Press, 420 pp., $99.

This month marks the five-year anniversary of Boumediene v.
Bush
, the Supreme Court decision that upheld the Guantanamo
detainees' constitutional right to habeas corpus—a writ requiring
the government to justify a person's imprisonment in a court of
law. The ruling offered a pointed rejoinder to the abuses committed
in the name of the war on terror. "Security subsists, too, in
fidelity to freedom's first principles," Justice Anthony M. Kennedy
wrote. "Chief among these are freedom from arbitrary and unlawful
restraint and the personal liberty that is secured by adherence to
the separation of powers."
The five past years, however, have called Boumediene's
significance into question. Relatively few Guantanamo detainees
have been released as a result of court orders issued in response
to habeas petitions. Habeas, moreover, has failed to dislodge the
underlying system of prolonged indefinite detention at Guantanamo;
judges have largely endorsed the idea of holding terrorism suspects
as wartime captives. Rather than checking the exercise of state
power, the availability of habeas corpus has arguably helped
legitimize it.
This tension between the ideal and the reality of habeas corpus
is central to Anthony Gregory's excellent new book, The Power
of Habeas Corpus in America
. Gregory, a research fellow at the
Independent Institute, provides a valuable contribution to the
literature on habeas corpus, one with broader implications for
civil liberties, state power, and justice in a liberal democracy.
The book does not attempt to capture all of the complex doctrinal
shifts in habeas over the centuries. Instead, it synthesizes these
developments to underscore a paradox: the way habeas serves as
"both as an engine and a curb on state power." In the process,
Gregory charts how power dynamics have historically shaped
struggles over habeas and its role in American society.

Gregory situates this paradox early in habeas' history. During
the 15th and 16th centuries, habeas served mainly as a mechanism
for England's central courts to assert control over ecclesiastical
courts and other rival tribunals. By demanding that reason be given
why any of the king's subjects was imprisoned, habeas helped
increase the crown's authority and legitimacy.
By the late 17th century, on the other hand, habeas had become a
means of challenging royal authority itself, eventually taking on
its modern incarnation as the Great Writ of Liberty. Yet even here,
the story is more complex. Building on the pioneering work of
historian Paul Halliday, Gregory points out that, contrary to
popular interpretations, habeas' potential as a judicial constraint
on state power was threatened by legislation. Gregory notes, for
instance, how the famous Habeas Corpus Act of 1679, labeled by
William Blackstone as a "second Magna Carta and stable bulwark of
our liberties," ultimately diluted the writ's potency and
flexibility by tying it down to statute. Increasingly, habeas'
efficacy would be seen to depend on legislative action—an
understanding perhaps best illustrated by U.S. Supreme Court Chief
Justice John Marshall's statement that a federal court's power to
award the writ "must be given by written law."
After discussing the writ's origins in England, Gregory turns to
his main focus, the United States. He describes habeas' migration
to colonial America, where it was understood in "de-centralized,
anti-royal, and revolutionary" terms. This radical conception,
Gregory explains, did not last long, as habeas was diminished over
time through a process of usurpation and centralization. The U.S.
Constitution, Gregory acknowledges, includes a clause that narrowly
limits the circumstances under which habeas corpus may be
suspended. But Gregory argues that this provision, known as the
Suspension Clause, also gave the federal government the power to
modify and ultimately eliminate the writ's protections. While writ
has formally been suspended only four times in U.S. history—most
famously during the Civil War—it has periodically been contracted
through legislative action. In 1996, for example, the Antiterrorism
and Effective Death Penalty Act significantly constrained federal
prisoners' habeas rights.
The contradictions within habeas were manifested during
antebellum America, where the writ was used both to bolster slavery
and to undermine it. Slave owners employed habeas to apprehend
runaways—for example, by petitioning state courts in the North to
assist in apprehending their "property." Other state courts in the
North, by contrast, sometimes used habeas to free slaves or block
their return to the South. Ultimately, the ability of state courts
to wield habeas in defense of individual liberty was limited by
Supreme Court rulings barring state interference with the
enforcement of federal fugitive slave laws and, eventually, with
federal detentions generally—an example of what Gregory describes
as the dangers of centralization.
A significant counter to Gregory's thesis is the role federal
habeas corpus played during the 20th century in helping enforce
civil rights in the South and in advancing the criminal procedure
revolution undertaken by the Supreme Court to protect the rights of
defendants. Gregory's account here runs against the traditional
narrative in which habeas' centralization was critical to its
continuing role in protecting liberty. In response, Gregory cites
the declining utility of federal habeas corpus following several
decades of Supreme Court decisions and congressional restrictions
that have made it more difficult for prisoners not merely to obtain
relief but even to have their claims heard by a judge. Federal
habeas, Gregory writes, has become a "shell of what it promised to
be."
Gregory devotes several chapters to the war on terror, in which
habeas has been at the front lines in the battle over extrajudicial
detentions and abusive interrogations. Gregory is right to
acknowledge habeas' shortcomings, as Supreme Court decisions
upholding the writ's availability at Guantanamo have largely
impacted detentions at the margins. He thus captures the continuing
gap between the Court's proclamations of the writ's importance and
its impact at the ground level.
It may be, however, that Gregory asks too much of habeas. The
writ, at bottom, is a procedural vehicle, a means by which an
individual (or someone acting on that individual's behalf) can
force the government to justify its decision to detain before a
judge. Gregory's wide-ranging critiques of the U.S. government—of
imprisoning individuals as "enemy combatants," using military
commissions rather than federal courts to prosecute terrorism
suspects, and engaging in torture and extraordinary rendition—are
problems that habeas alone cannot rectify. Habeas provides access
to a judge, but it does not supply the substantive law that the
judge applies, nor does it tell her how to apply it.
For all its limitations, moreover, habeas has demonstrates
significant resilience over the centuries as a back-stop against
abuse of government power, providing some constraint even where it
fails to achieve its anticipated promise. For better or worse, if
the United States were to create another Guantanamo, we would
probably turn first to habeas corpus when we challenge it.