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