Harvard law School Professor Adrian Vermeule ’93 wrote the following book review, “States of Detention,” which appeared in The New Republic on March 1, 2010.
States of Detention
by Adrian Vermeule
Habeas corpus—Latin for “you have the body”—is a legal writ of English origin that allows judges to review the government’s grounds for detaining individuals. After the first phase of Paul Halliday’s superb history of habeas corpus, circa 1615, the judges of King’s Bench—the highest ordinary court—are riding high, using the Great Writ to consolidate their control over the bewildering myriad of lower English courts, administrative bodies, and special jurisdictions. As the book nears its close, circa 1815, the judges have lost control of habeas and of law’s subjects, and are increasingly subservient to an increasingly imperial state. How did this happen? Part legal drama, part subtle causal analysis, this book proves that a gripping history of a legal writ is no contradiction in terms.
Halliday’s lucid and learned account is implicitly structured around two large-scale transfers of power: the first from local institutions and executive institutions to the King’s Bench at Westminster, the second from the judges to Parliament. In the first stage, the judges of King’s Bench of the later sixteenth and early seventeenth centuries used habeas corpus as a centralizing device. Despite the libertarian mythology surrounding habeas, which grew up in a later period, the predominant justification for the writ was not so much the liberty of the subject as the prerogative of the King. “Only we judges of King’s Bench, the sovereign’s chief legal officers, can decide whether and when a subordinate tribunal or jurisdiction has validly exercised the prerogative to detain one of the King’s own subjects”—so the argument ran. King’s Bench used habeas to overpower some competing institutions, such as local or regional courts and executive councils, while more heavyweight institutions, such as the monarch’s own Privy Council of advisors, themselves cooperated with the growing transfer of power to King’s Bench. They did so because the memberships of court and council overlapped considerably, and because the political “alignment of forces” within the Privy Council encouraged a kind of abdication to the more cohesive judicial corps of King’s Bench.
In one striking case, Walter Witherley was jailed by the Welsh Council, a regional deputy of the Privy Council itself. The Privy Council allowed the judges to issue habeas in favor of Witherley, and even to jail Witherley’s jailer for contempt, because leading members of the Privy Council were hostile to the nobleman who headed the Welsh Council. The corporate aggrandizement of the crown’s judges, combined with rivalries inside other institutions, led all the relevant actors, as if by an invisible hand, to protect the liberty of the subject—merely as the byproduct of politics and of institutional competition.
Remarkably, the judges managed to more or less maintain their jurisdictional grip over the liberty of the subject during the tumultuous seventeenth century, which saw the execution of one king (Charles I), an interregnum of military dictatorship under Cromwell, and the ouster of another king (James II). Yet habeas corpus, and the sway of King’s Bench, came under increasing pressure as the security needs of an expanding empire became more pressing, and as the increasingly dominant Parliament began to enact temporary but frequent suspensions of the writ. Judicial control became ever more wobbly through the eighteenth century, and by the 1790s, or at the latest by the time of the Napoleonic wars, the judges were more or less reduced to the status that Francis Bacon had many years before wanted them to occupy: paper lions, crouched under the (Parliamentary) throne. Although the mythologizers of habeas were in full cry, the reality was far less elevated.
Halliday states but does not belabor the forces that produced this second large-scale transfer of power, from the judges to Parliament. We may read him to suggest two main mechanisms. First, Parliament handed the judges a poisoned chalice. Parliament began by using its legislative powers to promote liberty and to help the judges make habeas corpus more effective, but this very pattern of legislative partnership paved the way for later legislation that curtailed the judges’ control. The Habeas Corpus Act of 1679 was widely understood to supply a statutory basis for the ancient common-law writ. Quite quickly, the illusion developed that Parliament itself had created the writ; the implication was that “[w]hat Parliament made it could unmake, too.” Political and legal actors lack the historian’s long-run perspective, and a lack of institutional memory means that invented traditions and “mistaken notion[s]” hold sway. When the needs of empire induced legislators to suspend the writ’s operation, there were no intellectual or political resources left with which to oppose them.
Halliday actually describes this effect of Parliamentary legislation implementing habeas corpus as a “double-edged sword.” The same label is equally apt for a second institutional-cum-ideological mechanism that Halliday describes: the arguments that the judges had used to take power from executive councils and regional courts were the same arguments that Parliament used to take power from the judges. After all, the writ had been developed in the name of enforcing the prerogatives of the centralizing state. Having arrogated jurisdictional control principally in the name of the king’s prerogative to protect the liberty of his subjects, the judges’ position was undercut when the King-in-Parliament, increasingly controlled by the Parliamentary side of the partnership after the ouster of James II, asserted authority over subjects’ liberty. The House of Lords, the upper chamber of Parliament, was the highest court in the realm, so the judges’ arguments for judicial control of liberty themselves implied that King’s Bench was just another subordinate court.
For better or quite possibly for worse, historians are professionally reluctant to opine about the lessons of the past for the present, or to speculate about similarities and differences between the past and the future. Halliday barely touches upon recent controversies about whether American judges should extend habeas corpus to detainees at Guantanamo and at the Bagram Air Force base in Afghanistan. Yet current problems loom in the background of the narrative. When Halliday recounts how Parliament sent prisoners to the Channel Islands and other remote locales in order to avoid judicial control through habeas, it is easy to think that he intends an implicit comparison with the islands, literal and metaphorical, of America’s military empire. So what, if anything, can lawyers and other non-historians learn from all this?
The most obvious lessons of Halliday’s narrative rest on the surface. For one thing, habeas corpus, at least in many periods, has displayed a far narrower scope, and results from far less elevated judicial motivations, than its libertarian celebrants recognize. When the U.S. Supreme Court invalidated a federal statute as an unconstitutional suspension of habeas corpus, in a 2008 decision called Boumediene v. Bush, newspapers and civil-libertarians hailed the decision as a victory for freedom. Yet as of today no detainees have actually been released by final judicial order, from Guantanamo or elsewhere, except in cases where the government chose not to appeal the order of a district judge. The vast majority of detainees have received merely another round of legal process. Justice Kennedy, the hero of Boumediene in the eyes of the editorialists, may be more accurately described as a second Sir Edward Coke, who acquired fame by his magnificent talk about liberty while actually releasing few prisoners. Some speculate that judicial threats to release detainees have caused the administration to release them preemptively. Yet the judges would incur large political costs for actual orders to release suspected terrorists, and the government knows this, so it is unclear that the government sees the judicial threats as credible or takes them very seriously. The government, of course, has many administrative and political reasons to release detainees, quite apart from anything the courts do.
For another thing, habeas corpus and liberty generally are goods that societies will consume less of as their price rises. Even legal cultures imbued with libertarian principles have an appetite for liberty that is constrained by costs, and as security needs become more pressing, tradeoffs are inevitable. The expansion of England’s empire created ever-more occasions on which liberty, enforced by the writ, clashed with other social goals and had to take second place. The same phenomenon is central to understanding the role of liberty and habeas in the United States, after September 11 and in earlier periods of crisis. It is no accident that the Supreme Court did not risk a pronouncement on the merits of detainees’ habeas corpus claims until 2008 (and then only gingerly), after the immediate alarm over September 11 had subsided and with a politically crippled president presenting the judges with a target of opportunity. Now that the Christmas Bomber has put security risks back on the public agenda, with a growing public backlash against the legalization of counterterror policy, and with a politically vigorous president who has largely confirmed or even expanded the counterterrorism policies of his predecessor, a more constrained pattern of judicial behavior seems likely.
Yet the main lessons may lie elsewhere. Important legal differences between the American and premodern English legal contexts notwithstanding, Halliday’s mechanisms for undermining judicial control of liberty are highly relevant today. One legal difference is the Suspension Clause of the U.S. Constitution, which Boumediene enforced and which allows the judges to invalidate congressional statutes as invalid attempts to suspend the writ. There was no real analogue to this constitutional barrier in English law during the period Halliday covers. Yet as Halliday’s account suggests, such legal rules are embedded in an institutional and political setting that can either give them life or else drain them of vitality. And in the United States circa 2010, it is quite thinkable that habeas corpus will decline in much the same way, and for much the same reasons, as it did in Halliday’s narrative.
Boumediene and the background American law of habeas corpus offer ample scope for Congress to offer the judges a poisoned chalice in the guise of statutory assistance. Congress has long provided bare-bones statutory procedures for habeas petitions, but it could go much farther in codifying the writ, and it could even appear to expand the writ’s protection—for the time being. Boumediene itself confirmed that Congress may craft “adequate substitutes” for habeas corpus and thereby displace judicial requirements. By enacting a comprehensive habeas corpus law or a comprehensive substitute for the writ, akin to the Habeas Corpus Act of 1679, Congress can change public perceptions, making the writ seem more of a statutory than a constitutional instrument, and suggesting in the long run that what Congress has made, it may unmake.
To be sure, American judges claim to retain the power to review whether the legislative substitute is adequate, and thus to enforce a constitutional floor, unlike in England. Yet that power may crumble before the long-term forces of political psychology that Halliday identifies: a statutory substitute that is even more generous to detainees than the constitutional floor would have to be upheld against a civil-libertarian challenge, yet the comprehensive codification of habeas might undermine the judges’ authority in a longer-run perspective, paving the way for legislative cutbacks in the future. The “mistaken notion” that Halliday uncovers in England would then reappear in the American constitutional setting, taking a somewhat different form.
Although the mechanism operates over the long run, the possibility of triggering it would have immediate consequences. Many scholars and journalists, most prominently Jack Goldsmith and Benjamin Wittes, currently argue that a legislatively mandated scheme of security detention and review by specialized tribunals, within constitutional bounds, is superior to judicial improvisation. The possibility of a poisoned chalice suggests that civil-libertarians should be wary of such proposals, which may crowd out judicial authority in the long run even if substantive protections are not curtailed in the short run. (For somewhat similar reasons, civil libertarians have generally come to oppose the idea that Congress should enact a comprehensive statute to confirm the President’s authority to detain enemy combatants in the first instance). Conversely, those who think that the United States would do well to trade some liberty for greater gains in security should support an apparently generous offer of statutory protections for liberty, well above the current constitutional floor. By getting out in front of the liberty parade, security hawks can eventually lead it back in the opposite direction.
Even more relevant, however, is the double-edged sword. Boumediene is a striking decision for its sweeping assertion of judicial supremacy and its pointed lack of deference to other branches of government: again like Coke, Justice Kennedy is much given to such grandiose pronouncements. The Supreme Court is the highest court in our realm, so there is no analogue to the role of the House of Lords in Halliday’s account. Yet decisions like Boumediene centralize constitutional authority in the Justices, and as Halliday’s account shows, centralizing power in one’s own hands has the side-effect of creating a clear and tempting target for other actors. One such actor is the presidency, which can do a great deal to influence the Court’s behavior through the appointments process. A future president who appoints a decisive number of justices hospitable to executive power could effect a severe restriction of habeas corpus. Boumediene was a 5-4 decision, so every vote counts. After a decision of that sort, what intellectual resources would there be for opposing the Justices’ decision? If the Supreme Court is the decider, then it can curtail liberty as well as expand it; what the Justices have made, they can unmake.
In a future day, then, Justice Kennedy’s penchant for centralizing legal power in the Supreme Court may be seen, not as the precondition for a flourishing regime of habeas corpus, but instead as the very institutional development that paved the way for the effective demise of the writ. Of course habeas will always be with us, but perhaps only in the weakened form it took in England after the 1790s, our Suspension Clause notwithstanding. In this scenario, Boumediene itself would be a modern exemplar of the double-edged sword that Halliday describes so vividly.
Adrian Vermeule is John H. Watson Professor of Law at Harvard Law School.