HABEAS FOR THE TWENTY-FIRST CENTURY: USES, ABUSES, AND THE FUTURE OF THE GREAT WRIT,
by Nancy J. King and Joseph L. Hoffmann.
Chicago: The University of Chicago Press, 2011. 272pp. Cloth $45.00. ISBN:
978022643685.
HABEAS CORPUS AFTER 9/11: CONFRONTING AMERICA’S NEW GLOBAL DETENTION SYSTEM,
by Jonathan Hafetz.
New York: NYU Press, 2011. 352pp. Cloth $39.00. ISBN:
9780814737033.
Reviewed by Margaret S. Hrezo, Department of Political Science, Radford
University. Email: mhrezo [at] radford.edu.
Reading Habeas for the
Twenty-First Century: Uses, Abuses, and the Future of the Great
Writ (Habeas) and
Habeas Corpus After 9/11:
Confronting America’s New Global Detention System (After
9/11) at the same time has been an interesting experience.
Focusing mostly on the use of habeas in criminal cases King and
Hoffmann’s Habeas is
a practical and empirical study of how the Supreme Court has
defined habeas corpus and the implications of the federal
courts’ habeas policy.
Based on their studies, they offer suggestions for
alternative procedures which they believe will prevent the
current waste of energy and resources in areas where the use of
the writ is no longer necessary.
The book has a clear, consistent theme, and is
well-organized and well-written.
Its tone is professional and scholarly, yet the book
would be accessible to anyone with an interest in habeas corpus.
After 9/11 is just as
well researched, just as clearly written, and just as
well-organized. Hafetz also has produced a work that could be
read easily by anyone interested in the topic. However,
After 9/11 is an
impassioned defense of the rule of law in detainee proceedings
arising out of the war on terror. Despite their different tones,
approaches, and emphases, both works leave readers with the same
basic message.
Article I, Sec. 9 of the U.S. Constitution reads:
“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.”
This is the Suspension Clause.
Although the right to
habeas corpus is not specifically written into the American
Constitution, the framers assumed it and constitutionally
limited the ability to suspend the writ. For the people of the
founding period habeas corpus was an essential principle of law.
Everyone at that time recognized the critical importance of
preventing the sovereign power (no matter how constituted) from
being able to arbitrarily imprison individuals without charges
and/or trial.
However, since the end of the Civil War the Suspension Clause
has become one with which few citizens are familiar and it has
been discussed in detail only in the law school classroom.
These two excellent books underline why we ignore the
Great Writ at our peril. As King and Hoffmann maintain in
Habeas, habeas corpus
is an essential part of any scheme of ordered liberty. The theme
of both works is that the writ’s purpose is to provide flexible
remedies during times of social, political, and constitutional
crisis. The two books reviewed here underscore the fact that
times of upheaval result in a contest between the [*676] rule of law
and the belief that “anything that can be done, should be done.”
The outcome of the contest between those two views
strongly influences the social space created in response
to crisis. Habeas corpus ad subjiciendum is critical in the
contest. It
embodies society’s values and expresses the society’s view of
the appropriate balance between liberty and order, national and
state power, and the executive and legislative branches of
government.
In the end, a society
expresses what it is through its actions. The myth of America
was that we are “a government of laws, not of men.” In truth,
America’s vision and aspiration is to be a government of human
beings who voluntarily constrain their exercise of power because
of reverence for law and process. Habeas corpus lies at the
heart of that aspiration. It expresses the lines from the second
verse of America the
Beautiful:
“Confirm thy soul in self control, thy liberty in law.” As these
two books maintain, the past 35 years (and particularly the
decade since 9/11) have tested our commitment to America’s
aspirations toward self-control and maintenance of the delicate
balancing acts required by separation of powers and federalism.
According to King and Hoffmann,
Habeas for the
Twenty-First Century: Uses, Abuses, and the Future of the Great
Writ is a book about the current state of the writ and its
future. They argue that during the 1960’s and early 1970’s
habeas review by the federal courts performed the necessary
function of directing the attention of the states to important
constitutional guarantees. Habeas “provides the judiciary with
the authority to rein in the executive, the legislature, or the
states whenever they threaten individual liberty by disregarding
federal law…. In
particular, resort to the writ has allowed the federal judiciary
to vindicate the federal law that protects individual liberty
when, in responses to political or social crises, that law is
disregarded by the political branches of the federal government
or by the state governments” (p.11).
Today, however, the imbalance between federal and state courts
has been rectified and alternative means of ensuring fairness in
criminal cases need to be designed and implemented.
Often, habeas has become a “massive waste of time,
energy, and societal resources” (p.14). Inappropriate use of
habeas can cause citizens and the political branches to question
the need for and importance of the writ and strain limited
public resources (p.14). Habeas, King and Hoffmann argue, should
be reserved for cases in which there is “no other procedure that
can reasonably ensure judicial review of the legality of a
challenged detention” (p.14). King and Hoffmann maintain that
although federal habeas review of state criminal decisions
originally was justified, mostly it is no longer necessary.
Habeas review, they argue still remains important in capital
cases. They suggest
that Congress should find ways to make habeas review more
efficient and effective in capital cases and develop some
alternative process for considering early release decisions.
“Whenever repeated
challenges to particular types of detention recur with
sufficient frequency, and whenever petitions raising those
recurring issues become relatively routine, Congress should
shift those challenges away from habeas to alternative statutory
procedures” (p.16).
Although recognizing the contributions of theoretical and
historical studies of habeas corpus such as Halliday’s
Habeas Corpus: From
England to Empire, the King and Hoffmann rely on decisions
of the U.S. Supreme Court in framing the American understanding
of the meaning and evolution of the writ. After providing a
brief history of [*677] the meaning of habeas in the American context,
they begin their discussion of current controversies affecting
the writ. They
devote one chapter to situations involving pre-trial detentions,
civil commitments, immigrants, anarchists and communists, and
detainees from the war on terror.
They argue that these cases, whose central issue is
detention without conviction, go to the heart of what habeas
corpus seeks to prevent.
These sorts of cases are where habeas corpus is most
essential because detention without conviction lack “the
procedural safeguards that in criminal cases help to protect
against errors in the decision to confine” and because it is in
these cases that habeas helps ensure that “federal power remains
divided between the political branches and the independent
judiciary,” and acts as a “vital structural protection for
democracy and the rule of law during times of unrest” (p.21).
Most of the book, however, focuses on the use of habeas corpus
to fight criminal convictions. In
the U.S. the most usual habeas filing concerns review of state
criminal cases using 28 U.S.C. §2254. These cases ask for review
of state compliance with federal constitutional standards of
criminal procedure, and comprise 1 of every 12 civil actions in
federal district court.
The federal courts increasingly began to review state
cases under §2254 during the 1960’s in response to what King and
Hoffmann characterize as a crisis in federalism.
Even after the Supreme Court began incorporating the
protections afforded by the Bill of Rights, the state courts
continued to apply their own existing and often inadequate
procedures. King
and Hoffmann write that in “… the late twentieth century war of
federalism, the Supreme Court’s reinvigoration of federal habeas
corpus had much the same effect as the habeas expansion
of the 1860’s, allowing the lower federal courts to force
recalcitrant states to obey federal law” (p.65). The habeas
cases of the 1960’s and early 1970’s, they argue, made a
difference. Today,
however, that crisis in federalism has been resolved, and King’s
empirical analysis demonstrates that habeas review only makes
sense in capital cases. Except
in death penalty cases, habeas petitions are very rarely
successful. They
characterize federal habeas review of non-capital cases as a
“lottery,” arguing that in such cases habeas “simply does not
matter enough to have any meaningful impact on the police,
lawyers, and state judges…. and IT NEVER WILL” (p.68, emphasis
in the original).
The complexity of the rules and processes required prior to
filing a habeas petition mean that only those with the longest
sentences will make the attempt.
In addition, more recent Supreme Court decisions
concerning habeas have increased the complexity of the process.
The findings of King’s empirical study suggest that fewer than
60 of the 17,000 habeas cases filed annually in federal courts
(about 0.35 percent) result in an order for retrial,
resentencing, new opportunity for appeal, or release.
The success rate over all felony cases raised in state
courts is even lower (0.002 percent).
They argue that because habeas is not a genuine deterrent to
everyday constitutional mistakes, a new and different strategy
for non-capital cases is needed.
They suggest that Congress amend §2254 to limit habeas
review in noncapital cases criminal cases to a few situations
where the writ has the greatest potential to protect core
constitutional values: (1) where the petitioner is in custody in
violation of a new rule of constitutional law that the Supreme
Court has applied retroactively; and (2) where the petitioner
can present new evidence that could not have been discovered
earlier which, if it had been known, would have led to a verdict
of not guilty. The
resources saved by decreasing [*678] the number of habeas cases would
be directed toward improving the quality of the defense the
accused receives at trial.
King and Hoffmann believe that courts would see
their remedy as constitutional under the Suspension Clause as
long as states continue to rigorously apply current
constitutional safeguards at trial and “reasonable levels of
state appellate and postconviction review” (p.104).
Any congressional changes, they maintain, must protect
the Supreme Court’s flexibility in providing remedies that fit
the needs of the time.
King and Hoffmann also make recommendations for an alternative
strategy for federal prisoners who seek habeas relief under
Section 2255, which covers collateral review.
Although they argue that using virtually identical
procedures for Sections 2254 and 2255 once made sense, it no
longer is viable.
Unlike the state criminal convictions, many times §2255 is the
only opportunity a federal prisoner has to contest alleged
violations of federal law.
Thus, instead of imposing additional further restrictions
on this section of the statute, Congress should loosen the
existing restrictions.
Habeas review, the authors argue, also should be
maintained in state and federal capital cases because capital
litigation is hampered by “futile attempts to define perfect
legal procedures, producing an imperfect and constantly changing
situation” (p.134). In capital cases, habeas corpus can make a
real difference to the actions of state police, prosecutors and
judges.
Finally, King and Hoffmann examine cases involving sentence
administration claims.
There too they argue that Section 2254 review is not the
appropriate remedy.
Instead, they suggest: (1) removing the claims to a different
remedial scheme; (2) creating a statutory substitute; or (3)
rethinking the substantive law that makes sentence review
decisions the object of constitutional analysis by the courts
(in other words, return to discretionary release).
Whereas King and Hoffmann’s ground
Habeas in an
empirical study and a practical attempt to preserve the vitality
of habeas relief and the respect of politicians and citizens for
this essential clause, Hafetz’s
Habeas Corpus After 9/11
is an impassioned and exhaustive examination of the lack of
legal safeguards afforded to detainees at such places as
Guantánamo, Bagram, Abu Ghraib, and to those who were the
subjects of extraordinary rendition.
He argues that the Bush administration sought to
establish a global detention system that would be subject to no
legal restraints whatsoever and that much of that system remains
intact under the Obama administration. Under President Obama
some reforms have been made in the treatment of prisoners and
the improvement of procedures, but the broad claims of executive
detention power remain unchanged.
Thus, while
Habeas emphasizes the
delicate balance between state and federal power in habeas
review, After 9/11
examines that same delicate balance in separation of powers.
Hafetz’s study offers a different sort of empirical analysis.
Professor Hafetz has litigated some of the habeas corpus
detention cases arising out of the war on terror. His knowledge
of the evidence and the case law is comprehensive, and his
connection of the case law, assertions of presidential power,
and conduct of the war on terror to America’s constitutional
ideals is thoughtful and well-argued.
One of the strengths of this book is that it highlights
the intersection of constitutional law and the study of the
presidency by illuminating the implications for American
democracy of the untrammeled exercise of presidential power
during crises. And,
unlike many constitutional scholars (see, for example, [*679] Lessig
and Sunstein, 1994), Hafetz does not try to justify domestic
assertions of executive power (for example, signing statements
or arguments for the “unitary” executive) while deploring
assertions of executive power in the conduct of the war on
terror. In his view
both have similar repercussions on American values and political
life. His book
challenges Americans to think about what America is and what
values it chooses to represent.
His unstated question is: Is America still a nation
committed to the rule of law, or have we come to believe that
anything that can be done should be done?
Hafetz argues that the appropriate approach, and one that has
been employed successfully in several cases, is to bring
detainees to trial under the criminal law.
They should be accused of crimes and tried accordingly.
Instead, he maintains, President Bush “wanted to treat terrorism
as an armed conflict rather than criminal activity and yet also
wanted to avoid the limits that the law imposes on the detention
and treatment of prisoners during wartime” (p.1).
The administration’s goal was to create a class totally
without legal protections. Hafetz develops his argument by
following the chronological evolution of the global detention
system and the courts’ response to each step.
Part I of After 9/11
describes the origins of the Bush administration’s detention
policies, the pilot project on Guantánamo, and the deployment on
a global scale of the procedures and tactics used there.
In Part II, Hafetz reviews the origins, purposes, and
applications of habeas corpus in the US, in particular the
writ’s use to guard the line between civil and military
authority in wartime.
Part III is an intensive examination of the applicable
case law. After
thoroughly reviewing the facts and decisions in the applicable
cases, he writes that “Boumediene
ensures that future overseas detentions will take place in the
shadow of potential federal court intervention” (p.176).
That shadow should mean that executive decisions give
increased attention to the possibility of arbitrary detentions
in order to avoid judicial involvement.
However, in his view the detention cases decided by the
U.S. Supreme Court have not gone far enough in protecting
against unlawful detentions.
He advocates making habeas available to all those
detained by the United States without a valid Congressional
suspension of the writ.
In support of this argument, he maintains that habeas
traditionally was available regardless of citizenship and that
it had broad territorial dimensions.
He makes a good case for this contention.
However, a political scientist reading this book might
suggest that the Supreme Court’s decisions in these cases have
reflected a basic fact of the American judicial process, the
pull of both a legal and a democratic sub-culture.
Courts walk a fine line between the countervailing pulls
of these sub-cultures and another fine line between their role
and that of the two more political branches.
Part IV summarizes Hafetz’s conclusions and recommendations.
He contends that looking at litigation over detainee
rights and national security as “opponents in a zero-sum game”
is a mistake (p.189).
Litigation protects the rule of law, even when the results of
litigation are a compromise that fully satisfies neither of the
sides. A commitment to
process is what traditionally has set the United States apart
from many other nations.
We rashly squander our moral capital any time we ignore
process in the name of the ends justifying the means.
After examining the weaknesses of military commissions
and some of the alternatives that have been suggested, Hafetz
concludes that the best venue for these cases is America’s
criminal courts. He
argues that [*680] rules of criminal procedure can be applied
sufficiently flexibly to satisfy national security concerns yet
still give detainees a fair trial. The strength of the common
law is its ability to adapt rules to particular
circumstances.
He also maintains that critics of the criminal justice
system also “underestimate its strengths in gaining valuable
intelligence” (p.229).
Although Hafetz’s scholarship is excellent, he is outspoken in
his abhorrence of the global detention system America developed
after 9/11. His
passionate indictment of America’s response to 9/11 and his
criticism of the lack of procedural safeguards afforded
detainees likely will offend some readers.
However, this is an excellent book for anyone who wants
to understand all aspects of this issue.
There is no denying that 9/11 changed the way Americans
saw themselves and the world around them.
Hafetz challenges the decisions we made about how to
proceed and confronts us with the implications of those
decisions for American constitutional values.
Further, he does not just condemn; he offers alternative
measures that have the potential to be equally or more efficient
and effective in both practical and in constitutional terms.
Habeas
and After 9/11
complement each other well and have much to offer their readers.
They are thoughtful and well-researched responses to the
conditions of the time.
They stress the importance of habeas corpus in today’s
world as a protector of individual liberty during crises and of
the values the founders incorporated into the U.S. Constitution.
They suggest reforms and alternative procedures to
resolve existing problems.
Whether or not one agrees with the conclusions presented
by King and Hoffmann and by Hafetz,
Habeas and
After 9/11 have
provided political scientists and historians with perspectives
on habeas corpus that they need to consider.
REFERENCE:
Lessig, Lawrence and Cass Sunstein (1994). “The President and
the Administration,”
Columbia Law Review 94 (January ): 1.
http://www.lexisnexis.com/hottopics/lnacademic/.
CASE REFERENCE:
Boumediene v.
Bush,
553 U.S. 723 (2008).
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© Copyright 2011 by the Author, Margaret S. Hrezo.