True Writ: Habeas Corpus, Secret Courts & Gitmo
Becker, Joseph D., Commonweal
Acelebrated declaration is engraved above the portal of Langdell Hall, the central building of Harvard Law School: non sub homine sed sub deo et lege ("not under man but under God and law"). That was the brave admonition of Lord Edward Coke (1552-1634) to King James I when the monarch imprisoned one of his subjects peremptorily. The old judicial remedy for such misconduct by the chief executive was a special form of the writ known as habeas corpus (literally, "have the body").
A state committed to the rule of law must, of course, grant a remedy for wrongful arrest and confinement. When the framers of the U.S. Constitution met in Philadelphia in 1787, habeas corpus procedure was already confirmed by an English statute of 1679 and the Massachusetts Constitution of 1780. The new federal Constitution consequently declared 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." Plainly, the Great Writ (as it came to be called) was familiar practice, not a creature of the Constitution but protected by it, and specifically authorized by the first statute enacted by Congress in 1789 to empower federal courts.
Although often invoked by prisoners jailed in state institutions who claim unconstitutional confinement, since 9/11 the writ has been sought repeatedly by detainees held at Guantanamo. To deal with the extraordinary spectacle of petitions emanating from an American naval base on the island of Cuba, authority has been granted to federal courts in Washington, D.C., to decide whether specific applications have merit. While the Supreme Court has approved such petitions, a price has been paid: historic judicial procedures have been distorted.
Lord Thomas Macaulay, in his History of 'England (1848), wrote of the Star Chamber, abolished in 1641, as an "unconstitutional" court. The partial secrecy of its proceedings was among its offenses. Modern judges consequently dispose of cases with written findings of fact and conclusions of law set out in opinions available to the public and to the press. This helps ensure we are at least governed sub lege (if not sub Deo).
The habeas petitions from Guantanamo, however, present a problem of secret adjudication in new form. For the government may claim that a response to the petition requires disclosure of information that it regards as secret. The government may be entitled to the protection of such information, and a court may well agree. The upshot has been the appearance in recent court opinions of bizarre judicial texts.
Consider the decision in Latif, decided last October by a federal appeals court in Washington, D. …