The Power of Habeas Corpus in America

From the King’s Prerogative to the War on Terror

By  Anthony Gregory

Highlights | Synopsis


  • Misconceptions about habeas corpus—commonly understood as the legal right not to be  detained arbitrarily by the government—abound. A bumper sticker slogan critical of George  W. Bush’s detention policy reflects a popular myth: “Habeas Corpus, 1215−2006.” Contrary  to this view, habeas corpus did not enjoy an unbroken streak from the signing of Magna Carta  until the signing of the Military Commissions Act. Moreover, habeas corpus did not originate  as an individual right against unjust detention, but rather as a court’s and a king’s prerogative  to challenge another party’s detention of someone. Habeas corpus as we know it today is the  product of centuries of power struggles, and it continues to change as the result of pressures  that affect our legal procedures and liberties.
  • The paradox of habeas corpus is evident in the U.S. Constitution. Article I, Section 9,  Clause 2, reads: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless  when in Cases of Rebellion or Invasion the public Safety may require it.” Although we usually  think of habeas corpus as a protection of an individual right against arbitrary government  power, the Constitution made it the servant of the federal government, which alone decides  whether an individual is engaging in unlawful rebellion or is justly acting against government  abuses. This is one reason why, during debates over ratification, Anti-Federalists criticized shifting  the authority to suspend habeas corpus from the states to the federal government.
  • The Supreme Court decisions of the 2000s did not curtail the federal government’s detention  powers as significantly as many people believe. In Boumediene v. Bush (2008), one of  the most controversial decisions in its history, the Court ruled that a constitutional habeas corpus  right extended to the U.S. detention camp at Guantánamo Bay and that the 2006 Military  Commissions Act unconstitutionally suspended habeas corpus for alien detainees held there. It  found the procedures established by the president and Congress to be an insufficient substitute  for judicial process, but it left open the door for them to craft alternative detention procedures.
  • President Obama’s first term yielded no real changes to the detention policies established  by his predecessor—yet one more example of hypocrisy in the history of habeas corpus. Military commissions, the Guantánamo Bay detention center, indefinite detention, extraordinary  renditioning, and most other manifestations of Bush’s detention policy were continued  and in some cases expanded. The Obama administration’s other radical policies, such as  detention at Bagram Air Force Base in Afghanistan and its assassination of American citizens,  underscore the limits of habeas corpus in restraining executive power, even when the judiciary  rules against it.


The right not to be arrested and jailed arbitrarily  is widely viewed as central to the Anglo-American legal tradition, a pillar on which our  constitutional rights rest. Leading jurists have  called the protection of this right—via the legal  device known as a writ of habeas corpus—“another Magna Carta” and “the most effectual  protector of the liberty of the subject that any  legal system has ever devised.”

Yet the Great Writ, as habeas corpus is also  known, did not originate as a safeguard against  unjust detention. It came to play that role after  centuries of struggle among English governing  bodies over who possessed the authority to  detain a particular individual. Even today, in  post-9/11 America, habeas corpus proceedings  reflect the prominence of government power  above the principle of liberty.

In The Power of Habeas Corpus in America, Anthony Gregory tells the story of  the writ from medieval England to modern  America, crediting the rocky history to the  writ’s very nature as a government power.  The book weighs in on habeas’s historical  controversies—addressing its origins, the  relationship between king and parliament,  the U.S. Constitution’s Suspension Clause,  the writ’s role in the power struggle between  federal and state government, and the proper  scope of federal habeas for state prisoners and  wartime detainees from the Civil War and  World War II to the War on Terror.

The concluding chapters stress the  importance of liberty and detention policy in  making the writ more than a tool of power.  The book also includes appendices that  examine U.S. Supreme Court decisions made  during World War II and the War on Terror.  Taken as a whole, The Power of Habeas  Corpus in America presents a nuanced and  critical view of the writ’s history, showing the  dark side of this most revered judicial power.

A History of Power Struggles

Habeas corpus arose and evolved in  response to struggles between competing  interests. In medieval England, courts had  long been decentralized and did not attempt  to compel obedience. Centralized royal courts  were introduced only after the Norman  Conquest in 1066, and although overlapping  and competing jurisdictions were common,  legal procedures became more uniform. Courts  issued various kinds of writs of habeas corpus  to compel sheriffs, witnesses, and juries; and  writs that scrutinized detentions and liberated  the wrongly detained arose from higher courts  asserting their authority over lower courts.

Parliament’s role is widely misunderstood.  Its limiting of royal power to detain was  motivated less by concerns for individual liberty  than by a desire to secure its immunity against  royalty and to augment its own power. On  numerous occasions it dispensed with habeas  corpus protections that obstructed its own  agenda, and it revealed itself to be as much a  menace to freedom as royalty had been.

The American colonists viewed habeas  corpus as one of their common-law rights as  Englishman, but they interpreted this tradition  selectively. Emphasizing its purest pro-liberty  element, they copied portions of England’s  Habeas Corpus Act (1679) and affirmed their  understanding through legal decisions and  legislation, but they ignored the centralizing  role that habeas had played in England.

Once the revolutionary war began, some  champions of habeas discovered that it  interfered with their own priorities. Virginia,  for example, suspended habeas for traitors to  the revolution. After independence was won,  states embraced habeas in their common law,  and some eventually made the writ irrevocable  in their constitutions. The American understanding of habeas corpus seemed like a  settled matter.

With the adoption of the federal Constitution,  however, the decentralized, revolutionary  conception of habeas corpus met an enormous  and ultimately overwhelming challenge. The  Suspension Clause transferred the ability to  suspend habeas corpus from the states to the  new central government. As Anti-Federalists  had warned during the debates over ratification,  the clause eventually transformed the American version of habeas corpus into something  that resembled the British one, a writ to  be imposed from above.

But even at the state level, habeas corpus  was not a consistent protector of individual  liberty, a fact especially evident in regard to  slavery. State habeas writs were used both  to undercut slavery and to defend it. In the  North, habeas corpus occasionally freed slaves  or blocked their return to the South. In the  South, slave owners used it to bring escaped  slaves back under their control, and slaves’   habeas corpus rights were subordinate to the  property rights of their owners.

The Civil War revealed that the federal  government was no more reliable in using the  writ as a tool of freedom than were the states.  The Lincoln administration suspended habeas  corpus, arrested thousands of citizens in the  North and South, subjected civilian detainees  to military commissions, and enforced martial  law. Although the dominant view until  then had been that only Congress, not the  president, possessed the authority to suspend  habeas, Congress raised no objection when  Lincoln affirmed this power as his own and  even passed a law that indemnified him. The  courts proved inadequate to stop the executive  encroachment.

Despite Ex parte Milligan (1864), a  Supreme Court decision that invalidated  military tribunal convictions when civil courts  were feasible, military tribunals continued  well after the war. The Habeas Corpus Act of  1867 gave federal courts habeas review powers  of lower and state cases—the better to protect  blacks from state oppression and enforce  national policy in the South. The moment  that habeas corpus came into conflict with the  priorities of Reconstruction, however, federal  politicians worked to curb federal habeas  review of federal cases.

Reconstruction brought about the full  nationalization of habeas corpus. With its  decision in Tarble’s Case (1871), the Supreme  Court stripped the states of their authority to  use habeas against federal detention.

Over the course of the following decades,  law enforcement grew increasingly federalized  and new threats to the liberty of detainees  emerged. Prosecutions under the Chinese  Exclusion Act (1882) were often challenged  on habeas corpus grounds, and courts usually  ruled in favor of the petitioner.

The 112,000 Japanese-Americans interned  in detention camps during World War II  had no such luck, and two Supreme Court  decisions related to this bleak episode in  habeas history are among the cases examined  in detail in the book’s appendices.

After the war cases were resolved, federal  habeas corpus controversies refocused on the  scope of federal review of state detentions. In   Ex parte Hawk (1944), the Court broadened  federal scrutiny, and Congress codified  this new standard in 1948. Later decisions  expanded the scope of federal review, especially  under the Warren Court and to a lesser degree  under the Burger Court. The Rehnquist  Court, however, oversaw a shift toward a  narrower scope for federal review. Legislation  passed in response to the Oklahoma City  bombing reinforced this trend.

Executive Detention in Post-9/11 America

The executive branch’s response to the  terrorist attacks on the World Trade Center  and the Pentagon renewed interest in habeas  corpus. Among the old issues that gained new  significance were the questions of whether  habeas guarantees apply to all government  detainees, whether national emergencies give  the executive branch special powers, and what  constitutes a valid suspension of the writ.

The post-9/11 hunt for terrorists and  collaborators in the United States quickly  netted more than one thousand people, mostly  immigrants, who were denied due process.  The USA PATRIOT Act, passed in October  2001, authorized the government to detain  suspected terrorists without charge for seven  days—or virtually indefinitely, so long as  every six months it deemed them a national  security threat. Most detainees were released  within one year. The treatment of American  citizens John Walker Lindh, Yaser Hamdi,  and Jose Padilla revealed further limitations of  conventional due process procedures.

Those deemed “enemy aliens” had  the fewest legal protections. Treatment  included military tribunals without Geneva  Convention protections, the depredations  at Guantánamo Bay and Abu Ghraib, and  enhanced interrogation. Dozens, and perhaps  several thousands, underwent “extraordinary  renditioning” to countries that practiced  harsher methods of interrogation.

In 2004, 2006, and 2008, the U.S.  Supreme Court issued controversial opinions  that reduced executive detention power. Each  decision, however, contained conciliatory  elements and even guidelines on how to  circumvent meaningful habeas review.

Ultimately, the Court decisions did little to  weaken the authority claimed by the executive  branch. President Obama, having campaigned  in 2008 to close Guantánamo, gutted the  impact of the Court’s rulings, both in their  narrow victory for the detainees and in their  broader meaning for detention policy.

Custody and Liberty

The mixed legacy of habeas corpus invites  a reassessment. Scholars have long argued  about what habeas corpus has “always meant,”   and all sides make valid technical points.  Lost in much of the discourse is the essence of the Great Writ, a meaning whose radical  implications even many of its devotees have  not yet considered.

Habeas has been an imperfect remedy  against tyrannical imprisonment, one badly in  need of a justifying principle. For those who  wish for individual liberty to triumph over the  abuses levied by executive detention and the  modern criminal justice system, the advocacy  of certain concrete reforms is necessary but  hardly sufficient.

“A society needs more than the judicial  order to secure its freedom,” Gregory writes.  “It needs to value that freedom in itself.”

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