The Gutted Writ: On Habeas Corpus
In early modern England, the judiciary was not a separate branch of government but an extension of the sovereign's law, Halliday explains. Writs of habeas corpus, accordingly, functioned less to safeguard individual liberty—still an embryonic concept—than to regulate the conduct of jailers. Faced with a polyglot legal landscape in which myriad entities, from ecclesiastical courts to justices of the peace, had been granted the franchise of imprisonment, powerful jurists, especially on King's Bench, the common law court upon which the monarch theoretically sat, used habeas corpus to review the decisions of lesser magistrates in order to ensure that his majesty's subjects were lawfully detained. In this way, Halliday argues, enterprising judges close to the crown made themselves into a superior court and "put themselves at the heart of the state."
Acting in the name of the sovereign and asserting the authority to "monitor the work of all other jurisdictions," King's Bench (Queen's Bench when the monarch was a woman) deployed the writ in an extraordinary array of cases, reshaping it in the process. Impressed soldiers, asylum inmates, slaves and prisoners of war sought release through habeas proceedings, sometimes successfully. Long before the development of modern family law, women called on the writ to escape abusive husbands, though they had to convince the court that a man's violence exceeded "the lawful government of his wife." Forged in common law rather than by statute, writs of habeas corpus, in the hands of determined judges, could reach almost any detainee, held under any circumstances, located anywhere under British control.
In the turmoil of the seventeenth century, the judiciary went further. If habeas began as a "writ of the prerogative by which the king demands account for his subject," Halliday writes, the justices of King's Bench increasingly claimed the powers of sovereign prerogative "for their own use, thereby making themselves the sun that lit the heavens." As the crown was weakened, judges asserted their independence, with startling results. In the wake of revolution in the late 1680s—"a period of rampant fear," with war raging in Ireland and an invasion from Catholic France looming—King's Bench reviewed the records of 147 detainees charged with treason and other "wrongs against the state" and ordered "bailed or discharged 80 percent," at a time when the very survival of the government hung in the balance. What started as a means of consolidating power had become a check on the powerful.
This was the golden age of habeas corpus, Halliday contends. Although Whiggish histories have depicted the Great Writ as marching ever forward, spreading freedom as it goes, Halliday shows that by the late eighteenth century, when Enlightenment revolutions were breaking out on both sides of the Atlantic, habeas corpus was in retreat. The advancing force was empire. While in one sense the centralizing authority exercised through habeas review standardized and thus facilitated the imperial reach of British law, the writ's promise to apply the law uniformly inevitably faltered before the inequalities and injustices of colonialism. Habeas corpus "traveled the globe," Halliday observes, but "suspension followed, like a shadow."
During the American Revolution, Parliament suspended the writ and for the first time made distinctions between detainees charged with committing offenses at home and abroad, with the result that "hundreds of American sailors" captured at sea were denied habeas relief and held indefinitely "not as POWs, but as traitors or pirates." In South Asia, habeas corpus arrived with the East India Company, but Halliday shows how statutory limitations on habeas—a topic too often ignored in the literature, he claims—"put Indians beyond the bounds of subjecthood" and empowered colonial governors to define "criminal tribes" and imprison or deport whole groups without trial. In response to the Mau Mau rebellion of the 1950s, hundreds of thousands of Kenyans, including Barack Obama's paternal grandfather, were rounded up, tortured or placed in concentration camps without judicial review. Habeas corpus cast no light of liberty there.
Halliday focuses mainly on sixteenth- and seventeenth-century England, but his attention to the perennial disappointments of the writ and its invidious intersections with empire make for fascinating reading in the twenty-first-century United States. Although habeas corpus is embedded in the Constitution and has been suspended by Congress only once, during a case of genuine rebellion in 1863, it faced epic challenges in the wake of September 11, when the Bush administration asserted unprecedented powers to unilaterally declare people "enemy combatants" and detain them at will, indefinitely and without independent review of any kind. Halliday's book suggests that the White House had ample, if selective and legally dubious, precedent for its aggressive posture. In response to "detestable conspiracies," both real and imagined, various British governments had pioneered all manner of habeas circumventions: removing prisoners to other countries, holding them on ships and building special prison camps on remote islands, where, "surrounded by waves," detainees were kept "beyond law's gaze." When challenged by the courts, administrators had sought and often won legislation to strip noncitizens of legal protections, indemnify jailers "who had done the ugly work" or simply suspend habeas corpus altogether—an increasingly common practice as the British Empire, and resistance to it, grew. In defending rendition, enhanced interrogation and indefinite detention at Guantánamo, legal theorists in the Bush administration thus borrowed from repressive tactics developed in colonial Ireland, Jamaica and New Zealand—conquered places that allowed the British sun never to set but where the law was too often put to sleep.