"The Tissue of the Structure": Habeas Corpus and the Great Writ's Paradox of Power and Liberty

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[C]onceptually the writ arose from a theory of power rather than a theory of liberty.

--Paul Halliday and G. Edward White, "The Suspension Clause"

At the heart of habeas corpus history is a seeming paradox. The Great Writ, like all judicial writs, is a government power. It is a judicial order, issued by a government official, to compel another person, typically another government official, to bring forth the body of a person, usually a detainee, for the purpose of testing the legitimacy of that person's detention--to ensure that the government's action comports with its own declared rules of conduct.

Yet the writ of habeas corpus is also a libertarian measure. It has been celebrated for centuries in the Anglo-American tradition as a means of questioning government power. It is probably the most revered of all of the checks and balances in our legal history--as William Blackstone commented, "the most celebrated writ in English law" ([1768] 1827, 107).

This paradox underlies the unusual history in which the writ was apparently first used in England not primarily to serve the interests of the detainees, but the interests of government officials in judicial process and remuneration. This origin explains why so much controversy erupted in regard to whether the Great Writ was, indeed, as Edward Jenks famously said, "originally intended not to get people out of prison, but to put them in it" (1902, 65, emphasis in original). The paradox explains why scholars such as Badshah Mian (1984) have seen fit to call this assertion into question, to reclaim the radical history of habeas corpus, and to find its origins not in other judicial mechanisms of similar name, but in those with a similar ultimate function--to release from prison those who do not belong there.

The emphasis on government power rather than on individual rights can be seen in most judicial arguments concerning the scope of habeas corpus in one area or another. In the United States, this emphasis often results from the writ's centralization and the overturning of the common law writ as practiced by state courts. (State courts originally had the power to use habeas corpus to challenge federal detentions. The U.S. Supreme Court overturned this power in Ableman v. Booth [62 U.S. 506 (1859)] and Tarble's Case [80 U.S. 397 (1871)].) Habeas corpus never truly fulfilled its promise in England, but in the United States it had a chance to develop into a writ truly efficacious in liberating the unjustly detained.

Now, however, most arguments deal with the executive power's proper boundaries and with the judicial power's limits to bring that executive power into question. Complicating the matter is the question of the legislature's proper role in defining the writ's reach. This dialectical balance between different modes of government power has underscored the Great Writ's development over time and explains why, despite many appeals to the fundamental principles of liberty involved, most modern court decisions appear to hinge on the question of whether one government official has the lawful authority to step in to scrutinize the powers of another.

This emphasis can be seen in the works of those who, in a narrow circumstance, argue for extension of habeas corpus. In the wake of the George W. Bush administration's post-9/11 detention policies, legal scholars concerned themselves with whether the executive can establish military commissions without congressional approval or whether a joint decision by the executive and legislature should be checked further by the courts rather than with whether some of the detainees at Guantanamo and elsewhere likely deserved to be released and, therefore, as a corollary of this concern for their liberty, whether the courts should check the executive. In "Habeas Without Rights," Jared Goldstein, one of the attorneys defending Kuwaiti prisoners at Guantanamo, argues that concern had been overly focused on the detainees' rights rather than on the legal powers shared by the executive and judicial branches. …