What good is habeas?

• Author: Huq, Aziz Z.
• Position: Presidential Power in the Obama Administration: Early Reflections

This essay examines empirically the effect of the Supreme Court's 2008 judgment in Boumediene v. Bush. Boumediene marked a sharp temporal break because it introduced a new regime of constitutionally mandated habeas jurisdiction for non-citizens detained as "enemy combatants" at Guantanamo. The Boumediene Court envisaged habeas jurisdiction as serving a twofold purpose. First, it claimed habeas vindicates physical liberty interests in line with a longstanding historical understanding of the writ. Second, the Court viewed habeas as a mechanism to generate or preserve legal boundaries on executive discretion. This essay gathers empirical evidence of the opinion's effect up to January 2010 to determine whether these goals were fulfilled. While the data is in many respects ambiguous, it suggests the effect of Boumediene on detention policy was not as significant as many believe. For example, less than four percent of releases from the Cuban base have followed a judicial order of release. Even in those cases, it is unclear if judicial action or something else caused release. Because the effects of habeas jurisdiction have been uncertain and perhaps marginal, effusive praise or blame of the Court's 2008 decision is premature.

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Few axioms of constitutional law seem more self-evident today than the proposition that the Great Writ of habeas corpus, as protected by the Suspension Clause, (1) is a "vital instrument for the protection of individual liberty." (2) Also largely common ground is the idea that habeas at its "historical core.., has served as a means of reviewing the legality of executive detention." (3) So understood, the habeas writ ranks as "an essential mechanism in the separation-of-powers scheme."' It is one of the "necessary constitutional means" vested by the Constitution's text in one branch "to resist encroachments of the others" as part of a "constant aim.., to divide and arrange the several offices in such a manner as that each may be a check on the other." (5) The integration of habeas into a larger account of the Constitution's separation-of-powers architecture played a prominent role in Justice Kennedy's recent majority opinion in Boumediene v. Bush, (6) which has been labeled "one of the most important Supreme Court decisions in recent years." (7) Even Boumediene's critics do not doubt habeas has policy consequences, although they profess to be "mystif[ied]" as to why a check on executive detention power is necessary.

This essay questions the conventional wisdom about habeas as a "check" on the executive branch. In Boumediene, the Supreme Court supplied a twofold normative justification for constitutional habeas jurisdiction: It first directly promotes physical liberty, and second reinforces the separation of powers by preserving a limited government via enforcement of unambiguous legal constraints on the executive branch. Using the aftermath of Boumediene as a case study, I argue that the resulting habeas jurisdiction has had at best a complex, largely indirect, effect on detention policy. In the end, the impact of habeas is far more ambiguous than either critics or supporters of Boumediene have recognized. Harsh criticism and extravagant praise of the Court should both be tempered in the teeth of persisting empirical uncertainty.

Empirical and doctrinal data for this essay are drawn from litigation and judicial opinions following the Supreme Court's Boumediene opinion. Boumediene concerned the scope of judicial supervision of detention operations at the Guantanamo Bay Naval Base in Cuba. Boumediene marked a temporal break because it introduced a new regime of constitutionally mandated habeas jurisdiction. Until June 12, 2008, there was doubt about the availability of habeas for non-citizens detained as "enemy combatants" at Guantanamo. It was "widely assumed that the Court would not intervene to invalidate executive action clearly authorized by statute that implicated military matters and foreign policy during a time of war." (9) So for many Justice Kennedy's majority opinion for the Court was a surprise. It also set in motion a new line of district court litigation--the "enemy combatant" habeas--with novel procedural rules, substantive standards invented on the fly, and few preexisting expectations. That litigation provides evidence of Boumediene's effect on the Executive's policy options. While natural experiments about constitutional design choices are rare, (10) Boumediene sets up an opportunity to examine (no doubt through a cloudy lens) the effect of one abrupt shift in constitutional design.

Part I of the essay describes Boumediene and situates the Court's theory of habeas as part of the separation of powers. Part II analyzes the consequences of post-Boumediene litigation. I examine first empirical data about detainee policy, and then turn to the doctrinal aftermath. Part III offers some tentative explanations for data presented in Part II, while underscoring quite how much remains empirically elusive.

I

What role does habeas jurisdiction, as guaranteed by the Suspension Clause, play in the constitutional order?H According to Justice Kennedy's Boumediene opinion, habeas jurisdiction not only promotes liberty but also plays a prominent function in the separation of powers. (12) But the strong connection between habeas and the separation of powers elaborated by Justice Kennedy is neither obvious nor necessary. To the contrary, it is of recent vintage, and finds roots as much in Justice Kennedy's views on structural constitutionalism as it does in the storied history of the Great Writ.

A recent comprehensive account of habeas's origins in its original early English context has argued that the writ early on was not a liberty-promoting restraint but "fundamentally an instrument by which the sovereign, through his judges, might ensure that his authority was not abused whenever an officer acting in the king's name imprisoned someone." (13) On this account, habeas was at its inception not a tool for dispersing power within government. Even its later celebration as a limit on "arbitrary government" was largely a "fiction." (14) Until at minimum the seventeenth century, habeas operated in a political regime wherein "every ... instrument of authority in England shared the same legal and conceptual source: the king." (15) In this context, it was at best a mechanism for reducing the cost of agency slack for the government's sole principal--the monarch. (16) It was a means for the king to rein in potentially wayward vassals.

By contrast, in the American context the Framers proposed a federal government designed "first [to] enable the government to control the governed; and in the next place [to] oblige it to control itself." (17) The principal in the American model is obviously no longer a king or central executive, but "the people." To control agency costs in this new model, which arose from unavoidable slack between the people's instructions and their representatives' actions, James Madison emphasized above all elections as tools to enable popular monitoring and control of elected agents. (18) But he also praised the fragmentation and allocation of government power across three branches as an "auxiliary" design feature to dampen the misuse of power. (19)

Habeas takes on a new role in this new context. In one regard, American habeas is less significant than its English cousin. In the English context, recent histories have argued, access to habeas was a "critical marker of subjecthood," an indicia of the bond between subject and sovereign monarchy. (20) There is no evidence I know of from the American context that habeas has had quite the same symbolic weight. (21) On the contrary, what is striking is how marginal a role habeas plays in the Federalist Papers' canonical account of the separation of powers, despite the fact that the suspension clause is one of the only individual rights guarantees in the original Constitution of 1787. In the Federalist 84, Alexander Hamilton devoted only a handful of sentences to describe habeas as a remedy for a particular harbinger of tyranny--the "secretly hurrying" of a person off the jail out of public sight. (22) Madison's classic explication of separated powers, earlier in the Federalist Papers, does not linger on habeas. Hence, even if habeas was significant to the Framers, the writ was not a central architectural feature of the new Constitution's dispersion of powers, as least as described in the Federalist Papers.

Subsequent American debates about habeas have centered on the scope of legislative control over the writ. In one of the first judicial expositions of the writ's meaning, Chief Justice Marshall seemed to split the difference, holding that power to award the writ "must be given by written law," but once jurisdiction had vested, "the meaning of the term habeas corpus," would be given "unquestionably [by] ... the common law." (23) Even in the twentieth century, there was still no consensus as to how habeas operated. In 2001, a view of habeas as a weak, essentially majoritarian institution still persuaded a substantial minority of the Supreme Court. Writing for four dissenting Justices, Justice Scalia argued that the Suspension Clause "does not guarantee any content to (or even the existence of) the writ of habeas corpus," but rather regulated one particular species of majoritarian abuse linked to emergencies. (24) On Justice Scalia's view, constitutional habeas regulates agency costs largely by making suspension turn on legislative preferences. Unsuspended, the writ falls within plenary congressional control. (25) At most, this might preclude the Executive from asserting a unilateral "Merryman power" to ignore a court's command absent suspension. (26) By Justice Scalia's admission, this is hardly a robust bulwark of separation of powers.

The case law also contains a stronger view of habeas as an instrument for the preservation...