LOOKING BACKWARD AND FORWARD AT THE SUSPENSION CLAUSE.

• Author: White, G. Edward
• Position: Book review

HABEAS CORPUS IN WARTIME: FROM THE TOWER OF LONDON TO GUANTANAMO BAY. By Amanda L. Tyler. New York: Oxford University Press. 2017. Pp. xiii, 281. $85.

For several years Amanda Tyler (1) has been writing on the writ of habeas corpus and the Suspension Clause, both with respect to their historical origins and their contemporary application to the current "war on terror." (2) Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay is both a recapitulation and an integration of those earlier writings. In a publisher's blurb on the back cover of the book, Jack Goldsmith describes it as "the definitive political and legal history of the writ of habeas corpus during war." It seems likely to occupy that status for some time to come.

But an intriguing question about Habeas Corpus in Wartime remains. Is it a history of how the "Privilege of the Writ of Habeas Corpus" (3) to challenge the detention of individuals outside the existing criminal process of civilian courts has endured in America despite successive wars, and how the suspension of the writ has been undertaken grudgingly and with abundant caution? Or is it a history of how the privilege has had little practical effect in wartime--initially because persons detained in connection with wars could readily be placed into legal categories that precluded their having a privilege to challenge their detention, or more recently because "total war," featuring the engagement of civilians as well as military personnel, has made it imperative that members of the population otherwise eligible to challenge their detention in the absence of suspension not be able to do so--resulting in the Suspension Clause in effect being "forgotten"? Tyler's book ends up being a history of both themes, requiring a sorting out of its implications.

1. THE ENGLISH HISTORY OF HABEAS CORPUS AND SUSPENSION

   The current understanding of the writ of habeas corpus in American constitutional jurisprudence emphasizes its status as an individual constitutional "right" designed to protect persons against arbitrary detention by the government. In that capacity, habeas can be said to represent a particularly cherished right, one that the framers of the Constitution valued sufficiently to put in that document's original text (4) before adding other rights in the form of amendments. The framers were particularly concerned about corrupt or tyrannical officials detaining persons without their being given an opportunity to hear and refute the charges against them, and the elevation of the "Privilege of the Writ" to constitutional status was responsive to those concerns. (5) At the same time, the framers recognized that in some circumstances--"invasion" and "rebellion" were singled out--suspension of the writ might be necessary to protect "public safety" (pp. 125-29). The impression created by the text of the Suspension Clause is one of American citizens typically being able to force officials detaining them to either proffer charges against them or release them from custody, and only having that "Privilege of the Writ" suspended in dire emergencies.

   The prefounding history of habeas corpus and suspension in England was only partially consistent with the understanding of those concepts that evolved in America. The habeas right had two sources in England: an inchoate "common law" basis and the Habeas Corpus Act of 1679 (p. 11). The emergence of common law habeas may have been an effort on the part of the King's Bench courts to bring additional cases before them so that their power could be extended. (6) Habeas corpus petitions, although understood as an effort to invoke the Crown's "mercy" when officials restrained the liberty of subjects of the Crown, were also opportunities for courts to investigate the legitimacy of detentions, many by officials of the Crown itself, and to justify them. And statutory habeas seems to have been an explicit effort on the part of Parliament to prevent Kings from arbitrarily imprisoning their enemies, often on ideological grounds. Thus, both versions of habeas in seventeenth--and eighteenth-century England seem to have been as much the products of institutional struggles as of an abiding concern with the liberties of English subjects.

   The suspension of habeas came, in that period, in the form of parliamentary acts enacted in response to purported emergencies. Although there were several suspensions in the eighteenth century, they were understood as existing for limited durations, and they were responses to "[e]xtreme [emergencies"--typically outbreaks of violence, sometimes religiously inspired. (7) Tyler suggests that, whatever the motivation may have been for creating the privilege of the writ of habeas corpus, once it was in place Parliament was reluctant to suspend it for any length of time (p. 53).

   Even where the habeas privilege was available, it was constrained in wartime by two legal categories: "enemy aliens" and "prisoners of war." No one suggested that enemy aliens were afforded the protection of habeas; the writ was designed for English subjects (p. 271). And the treatment of prisoners of war was governed by the laws of war, which accorded certain protections to belligerents detained by other nations, but certainly not the ability to challenge their detention. After the American colonies declared independence, the British struggled with how to classify Americans who had been captured by British ships and brought to England (pp. 66-67). The British government took the position that they were not prisoners of war but "rebels and traitors," because it declined to recognize the United States as a sovereign government (p. 67). Consequently, they were eligible to be tried for treason. But none were, because the Americans had captured various British officials, were treating them as prisoners of war, and were offering to exchange them for American prisoners in England (pp. 67-69). The lesson Tyler draws from the treatment of American Revolutionary War prisoners by the British is that they would have been entitled to petition for habeas corpus, since they were in England, even though it was "wartime." (8) But since the status designated for them by the British government turned on there being no official "war" between independent sovereigns, that conclusion is not self-evident.

   Tyler's conclusion that the privilege of the writ of habeas, and the requirements for its suspension, applied in times of war is, of course, crucial to the organization of her book. Her narrative, after it turns from England to America, consists of a series of episodes, most of them in "wartime"--when suspension of the writ was considered, enacted, or ignored--and her argument that the Suspension Clause has been "forgotten" since World War II rests on the assumption that a suspension of the writ needed to be enacted to justify the detention of American citizens even in wartime. Thus, it seems important to take a closer look at the basis for her conclusion.

   Given the importance Tyler attaches to the proposition that both the privilege of the writ of habeas and the necessity for its suspension to justify the indefinite detention of individuals were intended to apply to wartime as well as to peacetime, the evidence she presents in support of that proposition is somewhat thin. She presents two sorts of evidence. One is textual: the fact that the Habeas Corpus Act of 1679 contained no limitation to the applicability of habeas in times of war. The other is an extrapolation from the enactment of suspensions themselves. Tyler argues that when Parliament passed suspensions in 1696, 1708, 1715, 1722, 1744, and 1745, all of them were in response to concerns about threats of war or took place when England was actually at war with France (pp. 47-51).

   There is less weight to this evidence than might first appear. Tyler notes that "much of [the] legal framework" connected with the Habeas Corpus Act of 1679 was "not so much the result of a deep concern for civil liberties per se, but represented instead the product of a concerted effort by Parliament to protect its privileges and wrestle control of such matters from the monarch" (p. 30). If so, it would seem that the principal concern of those who passed the Habeas Corpus Act was with limiting the power of the Crown to detain persons indefinitely without advancing reasons, and the combination of a habeas privilege and suspension was a way in which Parliament, rather than the Crown, could decide when such detentions were appropriate. That would seem to be a concern primarily limited to domestic institutional disputes rather than to the protection of England against foreign enemies. As for the evidence that suspensions took place when England was at war, only the first and the last two of them did: England declared war on France in 1689, and England and France were again involved in hostilities in 1744. (9) The others were responses to rumors that groups in Scotland were intriguing against the Crown in an effort to return James II to the throne. James II had been displaced by a Dutch Protestant, William of Orange, and fled to France in 1688. (10)

   Instead of an impression that the purpose of habeas corpus was to prevent the sorts of arbitrary detentions of citizens that were most likely to occur in wartime, one gets a different impression from the data: that the purpose of suspending habeas corpus was to give a threatened government the power to detain suspicious persons without fearing they would be released after habeas petitions. That perceived threats to the Crown were the basis of suspension legislation, and that in three instances England was actually at war with France, might be taken as evidence of an implicit understanding that the writ of habeas may have made sense in tranquil times, but not when domestic turbulence or war against a foreign power was taking place.

   It is thus possible to look at the American episodes Tyler discusses...