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The Gutted Writ: On Habeas Corpus | The Nation

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The Gutted Writ: On Habeas Corpus

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Halliday posits that "the history of habeas corpus traces an ongoing tension between the logic of detention and the persistent judge." By 2004 it seemed the judge might again be gaining the upper hand. In three cases decided in June of that year, as images of prisoner degradation at Abu Ghraib spread around the world, the Supreme Court condemned the Bush administration's "unchecked system of detention" and breathed new life into habeas corpus. Narrow majorities ruled on a number of key issues: citizens and aliens alike retain their habeas rights, even if they are declared enemy combatants; the executive's war powers do not insulate it from judicial review; and writs of habeas corpus have the power to reach any jailer anywhere who is subject to US law, even at Guantánamo Bay, which is officially Cuban territory but has been controlled by the United States since the Spanish-American War. Rejecting the Bush administration's most expansive arguments, the justices noted that the founders, having suffered British despotism, regarded "unlimited power" as "especially hazardous to freemen." As Justice O'Connor famously commented, "A state of war is not a blank check for the President."

In the Place of Justice
A Story of Punishment and Deliverance.
By Wilbert Rideau.
Buy this book.

Habeas Corpus
From England to Empire.
By Paul D. Halliday.
Buy this book.

About the Author

Robert Perkinson
Robert Perkinson teaches at the University of Hawaii at Manoa and is the author of Texas Tough: The Rise of America...

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The Court's rulings marked another milestone in the history of the Great Writ, yet the aftermath bears out Halliday's clear-eyed approach. Following the advice of Justice Scalia, who accused his fellow justices of "judicial adventurism of the worst sort" (ironically, just the sort of adventurism that created habeas and sustained it over four centuries), Congress in 2005 stripped Guantánamo detainees of their habeas rights, reinforcing Halliday's contention that legislators can be as hostile to civil liberties as executives. In two subsequent cases, most categorically in Boumediene v. Bush (2008), the Court struck back, again rejecting President Bush's determination to "govern without legal constraint" and Congress's willingness to let him. The majority ruled that under the Constitution lawmakers have no right to suspend the writ selectively and that military tribunals, as set up by the Pentagon, provide no "adequate substitute" for impartial, adversarial judicial review. Sweeping in scope, the decisions nonetheless left the vast majority of detainees in legal limbo: still incarcerated, still awaiting their day in court. Almost a decade after its creation—despite constitutional censure and promises by President Obama to shut it down—the prison camp that Amnesty International has called "the gulag of our times" remains mostly insulated from the rule of law. On the page, habeas corpus may have triumphed over the Bush administration's war of fear, but on the ground the "logic of detention" continues to unfold.

This disjuncture between promise and practice is equally pronounced, if less discussed, in other areas of modern US law. In the realm of immigration enforcement, where federal detention has expanded most rapidly in recent years, similar tensions have developed between the judiciary and the political branches, and with similar results. In 2001 the Supreme Court held in INS v. St. Cyr that immigration detainees have habeas rights and that deportation hearings managed by the Justice Department, an executive agency, cannot be walled off from judicial review, as Clinton-era statutes tried to do. In 2005 Congress responded with the Real ID Act, which in addition to setting up the rudiments of a controversial national ID card system, included scarcely noticed provisions to paralyze the writ of habeas corpus in immigration cases without actually killing it. By imposing thirty-day federal filing deadlines and limiting the purview of the judiciary to questions of constitutional law rather than the factual record of individual cases, the statute preserved habeas in name but in effect made it unavailable to thousands of detainees each year. "The government has so chipped away at habeas in immigration cases as to make it an almost meaningless right," says Lee Gelernt, an ACLU attorney who is building a case to challenge the new law. He adds that an executive-only approach to immigration enforcement has continued under the Obama administration, which detained 380,000 individuals on immigration violations in 2009, almost none of whom are provided access to counsel or even an independent court hearing, much less habeas review.

In conventional criminal law, the United States is unique in using habeas corpus primarily as a postconviction remedy. Invoking the writ successfully has never been easy, as the case of Wilbert Rideau makes clear. Nevertheless, postconviction habeas developed into an important alternative to direct appeals and as a mechanism of equity relief, especially in death penalty and civil rights cases. During the divisive crime debates of the 1990s, however, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA), which put habeas petitions beyond the reach of all but the most capably represented and egregiously wronged criminal detainees. Extending legalistic restrictions already imposed by the Rehnquist Court, the law requires prisoners to exhaust all state remedies before turning to federal court, limits the ability of federal judges to question the decisions of trial courts and imposes various administrative burdens on petitioners, including strict deadlines for initial filings—all of which add up to insurmountable barriers for most inmates, who tend to be indigent, poorly educated and unrepresented by counsel. "AEDPA has been awful for criminal defendants," says Vanita Gupta, an ACLU attorney who under more forgiving state rules famously helped overturn a host of wrongful drug convictions in Tulia, Texas. "Its onerous, lawyerly demands and blanket restrictions have created a morass of litigation and severely curtailed the reach of the Great Writ." Even as America's prison population has swollen to an unparalleled size, a key conduit for release has thus been shut off, in effect rendering the country's first civil right an inaccessible right. As during the repressive ascendance of the British Empire, lawmakers in the United States have "bound the judge and muffled the prisoner's sighs."

Halliday's history of setbacks and shortcomings is indeed discomfiting. "Beginning with royal power" and ending with "detention of people on a scale that defies judiciousness," his book suggests that the "idea of habeas corpus"—that no person shall be detained except by due process of law—"has been more powerful outside of courtrooms than inside them." Yet his book is not without hope. Halliday shows how innovative and persistent judges turned an instrument of the king's prerogative into a "writ of majestic, even equitable, sweep" and managed, in some cases at least, to defend it against "a legislative onslaught on liberties of every kind." In thwarting the Bush administration's absolutist leanings, the Supreme Court has recently shown glimmerings of that same independence, but the results remain unclear. In the twenty-first century, habeas corpus can be as vital for the protection of individual liberties as it was in the seventeenth, but courageous judges—precisely the sort excoriated by Scalia—will have to make it so.

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