'The tissue of the structure': habeas corpus and the Great Writ's paradox of power and liberty.

• Author: Gregory, Anthony
• Position: Report

[C]onceptually the writ arose from a theory of power rather than a theory of liberty.

--Paul Halliday and G. Edward White, "The Suspension Clause"

At the heart of habeas corpus history is a seeming paradox. The Great Writ, like all judicial writs, is a government power. It is a judicial order, issued by a government official, to compel another person, typically another government official, to bring forth the body of a person, usually a detainee, for the purpose of testing the legitimacy of that person's detention--to ensure that the government's action comports with its own declared rules of conduct.

Yet the writ of habeas corpus is also a libertarian measure. It has been celebrated for centuries in the Anglo-American tradition as a means of questioning government power. It is probably the most revered of all of the checks and balances in our legal history--as William Blackstone commented, "the most celebrated writ in English law" ([1768] 1827, 107).

This paradox underlies the unusual history in which the writ was apparently first used in England not primarily to serve the interests of the detainees, but the interests of government officials in judicial process and remuneration. This origin explains why so much controversy erupted in regard to whether the Great Writ was, indeed, as Edward Jenks famously said, "originally intended not to get people out of prison, but to put them in it" (1902, 65, emphasis in original). The paradox explains why scholars such as Badshah Mian (1984) have seen fit to call this assertion into question, to reclaim the radical history of habeas corpus, and to find its origins not in other judicial mechanisms of similar name, but in those with a similar ultimate function--to release from prison those who do not belong there.

The emphasis on government power rather than on individual rights can be seen in most judicial arguments concerning the scope of habeas corpus in one area or another. In the United States, this emphasis often results from the writ's centralization and the overturning of the common law writ as practiced by state courts. (State courts originally had the power to use habeas corpus to challenge federal detentions. The U.S. Supreme Court overturned this power in Ableman v. Booth [62 U.S. 506 (1859)] and Tarble's Case [80 U.S. 397 (1871)].) Habeas corpus never truly fulfilled its promise in England, but in the United States it had a chance to develop into a writ truly efficacious in liberating the unjustly detained.

Now, however, most arguments deal with the executive power's proper boundaries and with the judicial power's limits to bring that executive power into question. Complicating the matter is the question of the legislature's proper role in defining the writ's reach. This dialectical balance between different modes of government power has underscored the Great Writ's development over time and explains why, despite many appeals to the fundamental principles of liberty involved, most modern court decisions appear to hinge on the question of whether one government official has the lawful authority to step in to scrutinize the powers of another.

This emphasis can be seen in the works of those who, in a narrow circumstance, argue for extension of habeas corpus. In the wake of the George W. Bush administration's post-9/11 detention policies, legal scholars concerned themselves with whether the executive can establish military commissions without congressional approval or whether a joint decision by the executive and legislature should be checked further by the courts rather than with whether some of the detainees at Guantanamo and elsewhere likely deserved to be released and, therefore, as a corollary of this concern for their liberty, whether the courts should check the executive. In "Habeas Without Rights," Jared Goldstein, one of the attorneys defending Kuwaiti prisoners at Guantanamo, argues that concern had been overly focused on the detainees' rights rather than on the legal powers shared by the executive and judicial branches. He states that

habeas relief does not require the possession of rights.... [A]lthough the courts have not decided whether the Guantanamo detainees possess enforceable rights, they have uniformly and mistakenly concluded that the detainees' habeas claims, as well as the habeas claims brought by other accused enemy combatants, require a showing that the detainees possess cognizable rights violated by the detentions, most especially rights protected by the Constitution.... [F]or most of the long history of habeas corpus, courts resolved habeas claims without undertaking any inquiry into the petitioner's rights by determining whether the jailer had authority to impose the challenged detention. Habeas did not address "rights" in the modern sense of a discrete group of personal trumps against governmental action, such as those protected by the Bill of Rights. Habeas did not protect rights in this sense for a simple reason: habeas predates rights. (2007, 1) It is true that the writ of habeas corpus predates the modern conception of negative liberties, or the right to be free from government encroachment. It is also true that emphasizing power rather than rights is often a better tactic in the courtroom, where judges are understandably more concerned that the boundaries of their own authority are being respected rather than with what they might view as the abstract consideration of personal liberty of those whose detentions are being brought to them for their scrutiny. In a sense, habeas corpus has always been about power, even before it had much to do with liberty as an ideal. This view arises from a closer reading of the tradition and history of the writ, whereas an idealistic assumption that all detainees, for the sake of their liberty, have had minimal recourse through habeas corpus perhaps gives too much credit to those protagonists in the story of the writ's coming of age.

Judges' interest to have their power respected has always been a crucial part of the Great Writ's history and the legacy of hypocrisy seen in that history. Judicial officers and others' self-interested desire to flex their own muscles in the name of liberty and the rule of law but then to turn around and deny the privilege when it undermined their own power demonstrates the dubiousness of the interpretation that habeas corpus was always about freedom as a first principle or that power-hungry politicians and judges should be commended in unqualified terms for their long battle in securing the freedom of the most vulnerable among us.

Courts in England broadened and seized the writ as a way to assert their own power. The parliamentarians championed the writ in language of high principle, only to switch sides and suspend it when the king's partisans used it against them. The famous Habeas Corpus Act of 1679, "the most wholesome law," was passed not simply to placate the masses, but with the specific desire to protect members of the House of Lords from being arrested by members of the House of Commons (Duker 1980, 48-51, 56). The American revolutionaries wanted the writ for themselves but did not always respect the loyalists' right to use it. Thomas Jefferson asserted that it should never be suspended, but once he was in power, he tried to suspend it (Hamdi v. Rumsfeld, 542 U.S. 507, 565 [2004]). Proponents and opponents of slavery and centralized power in antebellum America found themselves on one side or the other, depending on circumstance (Wert 2004). Chief Justice Roger Taney railed against Abraham Lincoln for his abuse of the Great Writ, but it was he himself who, in Ableman v. Booth (62 U.S. 506 [1859]), gutted the most radical use of the writ in U.S. history--its employment by state courts against federal detentions so as to undermine the Fugitive Slave Act. The Reconstructionists pushed through a federal expansion of habeas corpus, largely to punish the South, but then moved to curtail the privilege when it was used against their agenda to free people jailed for the crime of merely criticizing their program (Ex parte McCardle, 74 U.S. 506 [1868]). In the twentieth century, Earl Warren advanced an activist use of federal habeas corpus to question the detention of individuals by state governments, but a skeptic might say he regarded this tactic as a way to aggrandize the power of his own governmental body, just as when he was California's attorney general, he was a firm and complicit supporter of Japanese internment, also an aggrandizement of federal power, whereby many more individuals were detained without legal due process than were ever freed by his alleged judicial activism. Senator Barack Obama was a great and vocal champion of the Great Writ until he left the Senate to become the president and custodian, at which point he immediately found ways to justify indefinite executive detention without judicial review (Sanger 2009).

But the Great Writ, aside from the vagaries and inconsistencies that have accompanied its practice and development--apart from the centralizing and hypocritical power that has often employed it for the centralizer's own advantage--has unmistakable significance for how we view ourselves as a society and for the types of principles we claim as defining our civilization. As Cary Federman has written in The Body and the State: Habeas Corpus and American Jurisprudence, the fundamental questions raised by habeas corpus pertain just as much to the way in which people perceive and discuss legal reality as to the way legal business is conducted: "The writ reveals a breach, not just institutionally but also in language. It exposes a different way to understand the law, one based on the reality and harshness of the criminal justice system for those unable to secure quality counsel" (2006, 12).

Federman elaborates on the discursive themes involved in habeas corpus and reemphasizes the important principle of empowering the least...