Prison Law Blog

Sara Mayeux

Posts Tagged ‘war on terror

Spotlight on Executive Detention, Part II: The (Perhaps Not So?) Great Writ

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Over at The New Republic‘s new review website, “The Book,” Harvard law professor Adrian Vermeule reviews an especially timely new legal history. Paul Halliday‘s Habeas Corpus: From England to Empire (Belknap, 2010) examines the Great Writ from its elaboration by English judges ca. 1615 to its takeover and weakening by Parliament ca. 1815. Halliday does not explicitly engage the current debate surrounding habeas corpus and the War on Terror, but Vermeule argues that his historical account has obvious and troubling implications for that debate. As Vermeule summarizes Halliday’s account:

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.

Vermeule suggests that a similar pattern could play out in America: paradoxically, the more that Congress and the Supreme Court clarify the scope of habeas corpus and create elaborate procedures for habeas corpus claims — activities presumably intended in the short term to articulate and help enforce the rights of detainees — the more they may foster the illusion over the long term that what they made, they can unmake, too.

Written by sara

March 2, 2010 at 10:01 am

Mass Incarceration and the War on Terror

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A common criticism of the Bush Administration was that, in prosecuting the War on Terror, the administration turned its back on fundamental American ideals such as due process, the right to counsel, and habeas corpus. (See, for instance, Jane Mayer’s indispensable expose The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals, Doubleday, 2008.) Yet, in a recent article in the NYU Review of Law and Social Change, Georgetown law professor and former public defender James Forman Jr. suggests that the War on Terror was not so much a reversal, as the logical extension of the War on Crime in the era of mass incarceration. The full cite is “Exporting Harshness: How the War on Crime Helped Make the War on Terror Possible,” 33 NYU Rev. L. & Soc. Change 331 (2009). From the introduction (pp. 332-33):

While I share much of the criticism of how we have waged the war on terror, I suspect it is both too simple and ultimately too comforting to assert that the Bush administration alone remade our justice system and betrayed our values. …

By pursuing certain policies and using particular rhetoric domestically, I suggest, we have rendered thinkable what would otherwise have been unthinkable. Moreover, as the world’s largest jailer, we are increasingly desensitized to the harsh treatment of criminals. We have come to accept such excesses as casualties of war—whether on crime, drugs, or terror. Indeed, more than that, we no longer see what we do as special, different, or harsh. Certain practices have become what [NYU sociology professor] David Garland calls “the taken-for-granted features of contemporary crime policy.” In part for this reason, despite the mounting evidence regarding secret memos, inhumane prison conditions, coercive interrogations, and interference with defense lawyers, the Bush administration’s approach to the war on terror went largely unchecked and unchanged.

Forman argues that by placing all the blame on isolated Bush Administration officials, we avoid confronting our own responsibility (p. 339): Read the rest of this entry »

Written by sara

February 16, 2010 at 7:56 am

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