Before September 11, 2001, the doctrine of habeas corpus—the principle that the state must explain why it’s hauled you off in leg shackles—was rarely the subject of legal dispute. Habeas cases were filed, and the writ was either granted or denied. But the claim that judges couldn’t hear such cases—that the government might detain great masses of people for years on end and without justification—wasn’t really open to debate. Habeas corpus is, after all, the only common-law doctrine enshrined in the Constitution. But after 9/11, the Bush administration began to round up foreigners, classify them as enemy combatants, and ship them to Guantánamo, where they awaited trials that never came.
Amid much wrangling in the courts, Congress then passed the Military Commissions Act of 2006, which provided, in part: “No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” The president had suspended the writ of habeas corpus, Congress had approved it, and it fell to the Supreme Court in 2008 to announce that the president’s suspension of the writ was unconstitutional. Habeas corpus rose from the dead. And the federal courts, hearing habeas petitions since that time, have freed thirty-two prisoners and endorsed the detention of eleven others. The courts are doing a brisk business in habeas review and may continue to do so for several years.
Depending on which side of the war-on-terror fence you stand on, that means that today more than ever the courts are either in the business of protecting civil liberties or that of freeing terrorists who will return to the battlefield. All this is an unexpected twist in the story of the centuries-old, venerated Anglo-American right to face your accuser and have the facts of your confinement reviewed by a neutral arbiter.
There is a certain quasi-fanatic glow that lights up our eyes when we speak the words habeas corpus. Whether you’re a senator debating its suspension, a judge weighing its merits, or an academic singing its praises, the conventional wisdom holds that the “Great Writ,” as it’s been called, is the high-water mark of human rights and individual liberties. In America, we talk about habeas the way we do about George Washington, the First Amendment, and baseball. Speaking angrily during the Senate’s debate over the Military Commissions Act, Arlen Specter thundered that “the right of habeas corpus was established in the Magna Carta in 1215, when, in England, there was action taken against King John to establish a procedure to prevent illegal detention. What the bill seeks to do is set back basic rights by some nine hundred years.” As it turns out, however, habeas corpus is not so much an enduring monument to human liberty as a mechanism for controlling jailers who detained prisoners in the name of the king. The Great Writ, as Paul D. Halliday details in Habeas Corpus: From England to Empire, is not as great as some of us think it is, but it’s nevertheless pretty terrific.
So sacred is the principle that the Constitution itself, in Article I, Section 9, provides that 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.” The principle of habeas corpus—the Latin phrase meaning “bring forth the body”—has long struck observers as the foundation of Anglo-American liberty. The British legal commentator William Blackstone wrote that “confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government” even than the taking of life. At bottom, habeas corpus is about giving the facts themselves their day in court.
Halliday, who teaches history at the University of Virginia, does more with this book than just rewrite the history of habeas corpus. He also challenges the way that most chroniclers go about drafting constitutional history. As he explains in his acknowledgments, “I planned to write a very different book when I set out.” But in order to better understand the history of the Great Writ, he went beyond the well-known commentaries of Blackstone and his countryman Edward Coke and turned to thousands of unopened parchment documents, concerning more than eleven thousand habeas cases from 1500 to 1800, from London’s National Archives. For researchers to ignore the documents themselves, writes Halliday, is to be “derelict as historians.” And as he worked through the documents, he discovered that they tell a very different story than the lofty historical writing about the writ might suggest.
In his systemic, rigorous investigation of the ways in which the writ was actually used—as opposed to how it was talked about—Halliday unearths a key insight: that the writ was rooted less in lofty conceptions of individual liberty than in early judicial efforts to prop up the king’s authority. The writ was really all about judicial power to protect the royal prerogative. Indeed, in the early 1600s, habeas directives were grounded in the king’s concern for his subjects as safeguarded by his judges. Nor was the writ used exclusively to protect the rights of unpopular political prisoners. Halliday has great fun detailing the use of the Great Writ in nasty spousal-abuse cases, such as that of Lady Elizabeth Howard in 1671, and custody fights, such as that over Bridget Hyde in 1675. The writ was used to free “lunatics” such as Deborah D’Vebre from confinement in the madhouse. The Great Writ was less a beacon of liberties than a “quirky,” “flexible,” and “creative” mechanism by which English judges interposed themselves into conflicts large and small.
Still, Halliday’s careful scholarship on the actual geographic reach of the writ may have changed history. In a 2008 Virginia Law Review article coauthored with G. E. White, which led to the publication of this book, Halliday discovered that during the seventeenth century, English judges used the writ to supervise wrongful jailers in Wales, the Channel Isles, the Caribbean, India, and Quebec. Moreover, he found that as long ago as the 1690s, habeas corpus could “be used to investigate whether a person was correctly labeled a POW.” And this research showed unequivocally that the King’s Bench—the monarchy’s common-law court—used the writ to “review the circumstances behind the confinement of any person, held anywhere, by anyone.” In addition, Halliday found that the “lack of discussion about nationality” of alien prisoners suggests that the writ was for foreigners “just as it was for subjects charged as traitors or felons: to bring them into King’s Bench for arraignment and trial.” What’s more, he points out that the prisoner’s place of birth or capture didn’t determine access to the writ; “by their presence in England, or by living under the control of other of the king’s subjects, such people were accepted as subjects for the purpose of investigating the legality of one person’s detention by another.”
Halliday’s article was cited four times by the Supreme Court in its majority opinion in Boumediene v. Bush, the seminal 2008 decision finding that prisoners at Guantánamo could not be stripped of their right to habeas corpus simply because of their designation as enemy combatants or the fact that they were being held there. Writing for the 5–4 majority, Justice Anthony Kennedy echoed Halliday when he found that “we know that at common law a petitioner’s status as an alien was not a categorical bar to habeas corpus relief.” Since the Boumediene decision, the Justice Department has found habeas challenges from Guantánamo detainees to be a major obstacle to administration plans to shutter the facility and move the detainees to stateside compounds.
But perhaps the most consequential lesson of Halliday’s research is that, contrary to what one might suppose about our democratic institutions, the greatest threat to habeas corpus came from the legislatures that kept suspending the writ, starting just ten years after the passage of the Habeas Corpus Act in 1679. The British Parliament continued to find it a “necessity” for the “security of the public” to suspend the writ during crises that were not always actual crises. As Halliday concludes, from the late eighteenth century onward, war and rebellion provoked fears that, “when channeled through ostensibly representative legislatures,” invariably went after the writ.
If habeas corpus is a tool of judicial power, its greatest enemy is often the elected branches that fear that power, particularly in wartime. That was precisely the rationale that Congress used in passing the Military Commissions Act, which barred more than four hundred detainees at Guantánamo from having access to the writ. When the Supreme Court found that action unconstitutional, it was, in many ways, just one more battle in a centuries-long fight over institutional power.
Habeas Corpus is not necessarily a page-turner for the lay reader, although it is full of colorful judges, unhappy sailors, and enough estranged wives to make these thousands of dusty old documents come vividly to life. But as a challenge to legal historians and their sacred-cow interpretations of the foundations of personal liberty—and, more essentially, as a methodological revision of the standard historical scholarship on the law—this book will change the landscape altogether. It serves as a critical reminder to the rest of us that even in wartime, at great distances, and across hundreds of years, the best way to judge the facts is to begin by looking at them.
Dahlia Lithwick is a senior editor of Slate.