Lincoln, the Suspension of Habeas Corpus, and Roger Taney

A new book details the conflict between Abraham Lincoln and Roger Taney over what it took to allow for Habeas Corpus to be suspended in the early years of the Civil War. Here is a summary of and commentary on the book's argument.

Revising our Attitudes about Habeas Corpus

Grits for Breakfast points out a provocative book that might revise the way we understand the evolution of the writ of habeas corpus and what it means constitutionally.

Here's a scholarly review.

From Grits: Halliday argues provocatively that “what constituted liberties was the result rather than the starting point of judicial decision-making,” and that the British Parliament's role was mainly to limit habeas authority rather than establish it.

Ironically, despite Justice Stevens' claim that the status of the "Great Writ" in 1789 provides the floor for its authority, Vladek says "perhaps the most radical way in which American practice has diverged from England’s has been the evisceration ... of the common law as a basis for habeas jurisdiction." Justice John Marshall in 1807 was the first to withdraw habeas authority from its more robust and wide-ranging common law roots to insist that “the power to award the writ by any of the courts of the United States, must be given by written law.” Writes Vladek, "In other words, the Article III federal courts—including the Supreme Court—were powerless to issue common-law writs of habeas corpus, and could only act pursuant to express statutory jurisdiction." The reviewer concludes that "Whether he misunderstood English history or misrepresented it, Marshall thereby perpetuated critically incorrect assumptions about the scope of common-law habeas corpus at the Founding."

I'll be honest, I can't completely follow what's going on here, but it seems that John Marshall may have misunderstood the proper basis of habeas corpus and our subsequent interpretation of habeas corpus has in turn been wrong.

Habeas Corpus

From the NYT:

A federal judge issued the Bush administration a sharp setback on Thursday, ruling that five Algerian men have been held unlawfully at the Guantánamo Bay detention camp for nearly seven years and ordering their release.

It was the first hearing on the government’s evidence for holding detainees at Guantánamo. The judge, Richard J. Leon of Federal District Court in Washington, said the government’s secret evidence in the case had been weak: what he described as “a classified document from an unnamed source” for its central claim against the men, with little way to measure credibility.

“To rest on so thin a reed would be inconsistent with this court’s obligation,” Judge Leon said. He urged the government not to appeal and said the men should be released “forthwith.”

The habeas corpus case was an important test of the administration’s detention policies, which critics have long argued swept up innocent men and low-level foot soldiers along with hardened fighters and terrorist commanders.

More on Habeas Corpus

The New York Times editorializes on an appellate court decision that may drastically expand the president;s ability to indefinitely curtail individuals detained on American soil.

The Bush administration has been a waging a fierce battle for the power to lock people up indefinitely simply on the president’s say-so. It scored a disturbing victory last week when a federal appeals court ruled that it could continue to detain Ali al-Marri, who has been held for more than five years as an enemy combatant. The decision gives the president sweeping power to deprive anyone — citizens as well as noncitizens — of their freedom. The Supreme Court should reverse this terrible ruling.

Mr. Marri, a citizen of Qatar legally residing in the United States, was initially arrested in his home in Peoria, Ill., on ordinary criminal charges, then seized and imprisoned by military authorities. The government, which says he has ties to Al Qaeda, designated him an enemy combatant, even though it never alleged that he was in an army or carried arms on a battlefield. He was held on the basis of extremely thin hearsay evidence.

Last year, a three-judge panel of the United States Court of Appeals for the Fourth Circuit, based in Richmond, Va., declared that the government could not hold Mr. Marri, or any other civilian, simply on the president’s orders. If it wanted to prosecute him, the court ruled, it could do so in the civilian court system.

But this decision was overturned in a complex decision in the 4th Circuit Court of Appeals. The question is whether a president's decision--or whims--may override the legal system.

. . . the full Fourth Circuit reversed the decision, and with a tangle of difficult-to-decipher opinions, upheld the government’s right to hold Mr. Marri indefinitely. The court ruled that Mr. Marri must be given greater rights to challenge his detention. But this part of the decision is weak, and he is unlikely to get the sort of procedural protections necessary to ensure that justice is done.

The implications are breathtaking. The designation “enemy combatant,” which should apply only to people captured on a battlefield, can now be applied to people detained inside the United States. Even though Mr. Marri is not an American citizen, the court’s reasoning appears to apply equally to citizens.

“Our colleagues hold that the president can order the military to seize from his home and indefinitely detain anyone in this country — including an American citizen — even though he has never affiliated with an enemy nation, fought alongside any nation’s armed forces, or borne arms against the United States anywhere in the world,” wrote Judge Diana Gribbon Motz.

At the moment this seems to be a marginal case, but how easy would it be for a president to declare anyone he chooses an enemy combatant and lock them up indefinitely? Think about what might happen following a 9/11 type episode. Is this the leading edge of a wedge expanding further the president's detention policies or a reasonable and limited response to an isolated incident?

Here's a link to the decisions: Al-Marri v Pucciarelli

Habeas Corpus and Guantanamo

The Supreme Court has once again rebuked the Bush Administration for its handing of the detainment of terrorist suspects, this time their refusal to allow the detainees to challenge their detentions. Allegations persist that some were randomly picked up off the streets, some allegedly in order for captors to collect bounties. The decision was close and the court is divided on the role they are to play in wartime.

As both sides of the court acknowledged in Thursday's decision, the cases exposed fundamental differences in the court's vision of judicial power. The conservatives favor adherence to strict rules and regulations promulgated by the political branches. The liberals are content to let judges judge, working out the boundaries between constitutional rights and national security.

The tie-breaker was Justice Anthony M. Kennedy, the nomadic conservative who in this case espoused a strong role for independent judges.

His cool assertion in the majority opinion of an essential role for the judiciary brought heated dissents from Chief Justice John G. Roberts Jr. and Justice Antonin Scalia. It lauded the role of the courts as a check on executive power and downplayed deference to the political branches.

"Within the Constitution's separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person," Kennedy wrote. He was joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

Roberts stopped just short of calling the opinion a power grab. "One cannot help but think . . . this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants," he wrote.

He lamented that military and intelligence officials would have a lesser role in shaping policy toward enemy combatants than lawyers and "unelected, politically unaccountable judges."

Scalia called the judiciary "the branch that knows least about . . . national security concerns" and penned the darkest line of the court's 126 pages of back-and-forth: "It will almost certainly cause more Americans to be killed."

The decision, Boumediene v. Bush, can be found here. A synopsis can be found here.

The Chron points out in its editorial that Kennedy's majority decision quotes Federalist #84:

Kennedy quoted Alexander Hamilton's explanation in Federalist Paper No. 84 why providing a judicial forum to detainees was vital to preserving limited government: "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."

Capable intelligence agencies and military forces are not the only considerations in defending national security, wrote Kennedy. "Security subsists, too, in fidelity to freedom's first principles. Chief among those are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers."

Just in case you think that what we cover in class is inconsequential, here is proof that it isn't.

Comments: Paris Hilton 11 Habeas Corpus 0

No one still seems to care much about the unauthorized detention of American citizens.

hmmmm

Paris Hilton v. Habeas Corpus

I always get a kick out of monitoring which posts get the most responses and which get little or none. The Paris Hilton post is gaining on the record holder: Caveman's Crib. A handful of you seem to be actually worked up about her current situation, but no one seems upset by the shaky status of habeas corpus, an issue of far greater importance since it keep us free from the indiscriminate, arbitrary actions of the state (ie., being randomly hauled off by the police).

There may be a valid reason for this imbalance though. I want you to explain it to me.

Why do you get worked up over Paris Hilton and not expansive police powers?

Added: I'm still getting comments about Paris Hilton and only Paris Hilton! Does the potential of unchecked police power bother anyone more than how she is being treated by the justice system? Maybe I'm not being clear. Tell me.

Habeas Corpus Redux?

The Senate Judiciary Committee is considering the Restoration of Habeas Corpus Act (S. 185 this week. Committee hearings were held on May 14th.

The bill would overturn restrictions on habeas corpus established in the Military Commissions Act.

For commentary when the bill was introduced, look here. And look here.

For a definition of Habeas Corpus look here.