The Paradox of Habeas Corpus

Habeas corpus can be a check on executive power-but it can also legitimize it.

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.