Despite its mystique as the greatest Anglo-American legal protection, habeas corpus has a long history that features opportunistic power plays, political hypocrisy, ad hoc jurisprudence, and many failures in effectively securing individual liberty. The Power of Habeas Corpus in America tells the story of the writ from medieval England to modern America, crediting the rocky history to the writs very nature as a government power.
This pioneering book weighs in on habeass historical controversiesaddressing its origins, the relationship between king and parliament, the U.S. Constitutions Suspension Clause, the writs role in the power struggle between the federal government and the states, and the proper scope of federal habeas for state prisoners and for wartime detainees from the Civil War and World War II to the War on Terror.
Anthony Gregory stresses the importance of liberty and detention policy in making the writ more than a tool of power. Taken as a whole, The Power of Habeas Corpus in America presents a nuanced and critical view of the writs history, showing the dark side of this most revered judicial power.
Table of Contents
Foreword by Kevin R. C. Gutzman
Introduction: The Power of the Writ
Part I: A History of Power Struggles
1. Common Law, Royal Courts
2. Parliament and the King
3. The Americanization of Habeas
4. Constitutional Counterrevolution
5. Fugitive Slaves and Liberty Laws
6. Suspension and Civil War
7. The Writ Reconstructed
8. Lynch Mob Justice
9. The Writ in World War
10. Federal Activism and Retreat
Part II: Executive Detention in
11. Mass Roundups and Ad Hoc
12. Enemy Aliens and Bushs Prerogative
13. The Dance of the Court and
14. Obamas Legal Black Hole
Part III: Custody and Liberty
15. The Great Writs Paradox of Power
16. A Remedy in Search of a Principle
17. The Modern Detention State and
the Future of the Writ
Appendix A: Analysis of Hirabayashi v.
Appendix B: Analysis of Korematsu v.
Appendix C: Analysis of Ex Parte End
Appendix D: Analysis of Rumsfeld v.
Appendix E: Analysis of Hamdi v.
Appendix F: Analysis of Rasul v. Bush
Appendix G: Analysis of Hamdan v.
Appendix H: Analysis of Boumediene v.
Misconceptions about habeas corpuscommonly understood as the legal right not to be
detained arbitrarily by the governmentabound. A bumper sticker slogan critical of George
W. Bushs detention policy reflects a popular myth: Habeas Corpus, 1215−2006. Contrary
to this view, habeas corpus did not enjoy an unbroken streak from the signing of Magna Carta
until the signing of the Military Commissions Act. Moreover, habeas corpus did not originate
as an individual right against unjust detention, but rather as a courts and a kings prerogative
to challenge another partys detention of someone. Habeas corpus as we know it today is the
product of centuries of power struggles, and it continues to change as the result of pressures
that affect our legal procedures and liberties.
The paradox of habeas corpus is evident in the U.S. Constitution. Article I, Section 9,
Clause 2, 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. Although we usually
think of habeas corpus as a protection of an individual right against arbitrary government
power, the Constitution made it the servant of the federal government, which alone decides
whether an individual is engaging in unlawful rebellion or is justly acting against government
abuses. This is one reason why, during debates over ratification, Anti-Federalists criticized shifting
the authority to suspend habeas corpus from the states to the federal government.
The Supreme Court decisions of the 2000s did not curtail the federal governments detention
powers as significantly as many people believe. In Boumediene v. Bush (2008), one of
the most controversial decisions in its history, the Court ruled that a constitutional habeas corpus
right extended to the U.S. detention camp at Guantánamo Bay and that the 2006 Military
Commissions Act unconstitutionally suspended habeas corpus for alien detainees held there. It
found the procedures established by the president and Congress to be an insufficient substitute
for judicial process, but it left open the door for them to craft alternative detention procedures.
President Obamas first term yielded no real changes to the detention policies established
by his predecessoryet one more example of hypocrisy in the history of habeas corpus. Military commissions, the Guantánamo Bay detention center, indefinite detention, extraordinary
renditioning, and most other manifestations of Bushs detention policy were continued
and in some cases expanded. The Obama administrations other radical policies, such as
detention at Bagram Air Force Base in Afghanistan and its assassination of American citizens,
underscore the limits of habeas corpus in restraining executive power, even when the judiciary
rules against it.
The right not to be arrested and jailed arbitrarily
is widely viewed as central to the Anglo-American legal tradition, a pillar on which our
constitutional rights rest. Leading jurists have
called the protection of this rightvia the legal
device known as a writ of habeas corpusanother Magna Carta and the most effectual
protector of the liberty of the subject that any
legal system has ever devised.
Yet the Great Writ, as habeas corpus is also
known, did not originate as a safeguard against
unjust detention. It came to play that role after
centuries of struggle among English governing
bodies over who possessed the authority to
detain a particular individual. Even today, in
post-9/11 America, habeas corpus proceedings
reflect the prominence of government power
above the principle of liberty.
In The Power of Habeas Corpus in America, Anthony Gregory tells the story of
the writ from medieval England to modern
America, crediting the rocky history to the
writs very nature as a government power.
The book weighs in on habeass historical
controversiesaddressing its origins, the
relationship between king and parliament,
the U.S. Constitutions Suspension Clause,
the writs role in the power struggle between
federal and state government, and the proper
scope of federal habeas for state prisoners and
wartime detainees from the Civil War and
World War II to the War on Terror.
The concluding chapters stress the
importance of liberty and detention policy in
making the writ more than a tool of power.
The book also includes appendices that
examine U.S. Supreme Court decisions made
during World War II and the War on Terror.
Taken as a whole, The Power of Habeas
Corpus in America presents a nuanced and
critical view of the writs history, showing the
dark side of this most revered judicial power.
A History of
Habeas corpus arose and evolved in
response to struggles between competing
interests. In medieval England, courts had
long been decentralized and did not attempt
to compel obedience. Centralized royal courts
were introduced only after the Norman
Conquest in 1066, and although overlapping
and competing jurisdictions were common,
legal procedures became more uniform. Courts
issued various kinds of writs of habeas corpus
to compel sheriffs, witnesses, and juries; and
writs that scrutinized detentions and liberated
the wrongly detained arose from higher courts
asserting their authority over lower courts.
Parliaments role is widely misunderstood.
Its limiting of royal power to detain was
motivated less by concerns for individual liberty
than by a desire to secure its immunity against
royalty and to augment its own power. On
numerous occasions it dispensed with habeas
corpus protections that obstructed its own
agenda, and it revealed itself to be as much a
menace to freedom as royalty had been.
The American colonists viewed habeas
corpus as one of their common-law rights as
Englishman, but they interpreted this tradition
selectively. Emphasizing its purest pro-liberty
element, they copied portions of Englands
Habeas Corpus Act (1679) and affirmed their
understanding through legal decisions and
legislation, but they ignored the centralizing
role that habeas had played in England.
Once the revolutionary war began, some
champions of habeas discovered that it
interfered with their own priorities. Virginia,
for example, suspended habeas for traitors to
the revolution. After independence was won,
states embraced habeas in their common law,
and some eventually made the writ irrevocable
in their constitutions. The American
understanding of habeas corpus seemed like a
With the adoption of the federal Constitution,
however, the decentralized, revolutionary
conception of habeas corpus met an enormous
and ultimately overwhelming challenge. The
Suspension Clause transferred the ability to
suspend habeas corpus from the states to the
new central government. As Anti-Federalists
had warned during the debates over ratification,
the clause eventually transformed the American version of habeas corpus into something
that resembled the British one, a writ to
be imposed from above.
But even at the state level, habeas corpus
was not a consistent protector of individual
liberty, a fact especially evident in regard to
slavery. State habeas writs were used both
to undercut slavery and to defend it. In the
North, habeas corpus occasionally freed slaves
or blocked their return to the South. In the
South, slave owners used it to bring escaped
slaves back under their control, and slaves
habeas corpus rights were subordinate to the
property rights of their owners.
The Civil War revealed that the federal
government was no more reliable in using the
writ as a tool of freedom than were the states.
The Lincoln administration suspended habeas
corpus, arrested thousands of citizens in the
North and South, subjected civilian detainees
to military commissions, and enforced martial
law. Although the dominant view until
then had been that only Congress, not the
president, possessed the authority to suspend
habeas, Congress raised no objection when
Lincoln affirmed this power as his own and
even passed a law that indemnified him. The
courts proved inadequate to stop the executive
Despite Ex parte Milligan (1864), a
Supreme Court decision that invalidated
military tribunal convictions when civil courts
were feasible, military tribunals continued
well after the war. The Habeas Corpus Act of
1867 gave federal courts habeas review powers
of lower and state casesthe better to protect
blacks from state oppression and enforce
national policy in the South. The moment
that habeas corpus came into conflict with the
priorities of Reconstruction, however, federal
politicians worked to curb federal habeas
review of federal cases.
Reconstruction brought about the full
nationalization of habeas corpus. With its
decision in Tarbles Case (1871), the Supreme
Court stripped the states of their authority to
use habeas against federal detention.
Over the course of the following decades,
law enforcement grew increasingly federalized
and new threats to the liberty of detainees
emerged. Prosecutions under the Chinese
Exclusion Act (1882) were often challenged
on habeas corpus grounds, and courts usually
ruled in favor of the petitioner.
The 112,000 Japanese-Americans interned
in detention camps during World War II
had no such luck, and two Supreme Court
decisions related to this bleak episode in
habeas history are among the cases examined
in detail in the books appendices.
After the war cases were resolved, federal
habeas corpus controversies refocused on the
scope of federal review of state detentions. In
Ex parte Hawk (1944), the Court broadened
federal scrutiny, and Congress codified
this new standard in 1948. Later decisions
expanded the scope of federal review, especially
under the Warren Court and to a lesser degree
under the Burger Court. The Rehnquist
Court, however, oversaw a shift toward a
narrower scope for federal review. Legislation
passed in response to the Oklahoma City
bombing reinforced this trend.
Executive Detention in
The executive branchs response to the
terrorist attacks on the World Trade Center
and the Pentagon renewed interest in habeas
corpus. Among the old issues that gained new
significance were the questions of whether
habeas guarantees apply to all government
detainees, whether national emergencies give
the executive branch special powers, and what
constitutes a valid suspension of the writ.
The post-9/11 hunt for terrorists and
collaborators in the United States quickly
netted more than one thousand people, mostly
immigrants, who were denied due process.
The USA PATRIOT Act, passed in October
2001, authorized the government to detain
suspected terrorists without charge for seven
daysor virtually indefinitely, so long as
every six months it deemed them a national
security threat. Most detainees were released
within one year. The treatment of American
citizens John Walker Lindh, Yaser Hamdi,
and Jose Padilla revealed further limitations of
conventional due process procedures.
Those deemed enemy aliens had
the fewest legal protections. Treatment
included military tribunals without Geneva
Convention protections, the depredations
at Guantánamo Bay and Abu Ghraib, and
enhanced interrogation. Dozens, and perhaps
several thousands, underwent extraordinary
renditioning to countries that practiced
harsher methods of interrogation.
In 2004, 2006, and 2008, the U.S.
Supreme Court issued controversial opinions
that reduced executive detention power. Each
decision, however, contained conciliatory
elements and even guidelines on how to
circumvent meaningful habeas review.
Ultimately, the Court decisions did little to
weaken the authority claimed by the executive
branch. President Obama, having campaigned
in 2008 to close Guantánamo, gutted the
impact of the Courts rulings, both in their
narrow victory for the detainees and in their
broader meaning for detention policy.
Custody and Liberty
The mixed legacy of habeas corpus invites
a reassessment. Scholars have long argued
about what habeas corpus has always meant,
and all sides make valid technical points.
Lost in much of the discourse is the essence of the Great Writ, a meaning whose radical
implications even many of its devotees have
not yet considered.
Habeas has been an imperfect remedy
against tyrannical imprisonment, one badly in
need of a justifying principle. For those who
wish for individual liberty to triumph over the
abuses levied by executive detention and the
modern criminal justice system, the advocacy
of certain concrete reforms is necessary but
A society needs more than the judicial
order to secure its freedom, Gregory writes.
It needs to value that freedom in itself.
Ask any American what his most important right is, and he is apt to mention the freedom of speech, the freedom of the press, or the freedom of religion. . . . Very rare is the person who would respond by saying, The right not to be arrested and jailed arbitrarily, let alone mention the judicial writ that protects that right: the writ of habeas corpus. Lawyers know it as the Great Writ, and the myth holds that its availability from time immemorial is the chief reason that Anglophones have long been free. Anthony Gregory here does the estimable service of showing that the Great Writ was not always what we now understand it to be. He also lays out in excruciating, nay shocking, detail the 150-year trend, accelerating in our day, of reducing the Writs importance.
Kevin R. C. Gutzman, Professor of History, Western Connecticut State University; author of James Madison and the Making of America
In his insightful and timely account of habeas corpus, Anthony Gregory illuminates not only the promise, but also the limitations of what for centuries has been known as the Great Writ. His treatment of this important subject is both eloquent and persuasive, enhancing our understanding of the relationship between law, power, and human liberty.
Jonathan Hafetz, Associate Professor of Law, Seton Hall University School of Law; author of Habeas Corpus After 9/11: Confronting Americas New Global Detention System
Gregory (research fellow, Independent Institute) adds to recent studies . . . reexamining the Great Writ. Gregory emphasizes paradoxes: how a writ designed to serve liberty began as a governmental power; how a writ initially designed for individuals accused of crime is primarily sought by those who have been convicted; and how a mechanism originally used by states to question federal detentions is now almost exclusively a federal preserve. Gregory believes that those on both the Left and the Right have misused and misunderstood the writ. It has been weakened by the overzealous prosecution of enemy combatants and praised by individuals who are seeking to suspend or evade it. After detailed chapters surveying its history, Gregory concludes that the writ is not ultimately as important as the natural rights it was designed to protect. Gregory thinks the U.S. continues to incarcerate far too many people and that the writ should once again be available to state courts. Appendixes include analyses of major cases from WW II through the War on Terror. Summing Up: Recommended.
Habeas Corpus is arguably the most important tool for peacefully repelling tyranny and effectively holding the government accountable for its interferences with personal freedom. It can reduce the government from a gang of armed thugs on its chosen turf to a gaggle of supplicant litigants in a neutral forum. In The Power of Habeas Corpus in America, Anthony Gregory reduces 400 years of Anglo-American legal and political history to a readable, thorough, compelling study of this natural and constitutional right. This book is so well researched and written, it will soon become the bible on all things Habeas Corpus for generations.
Andrew P. Napolitano, Senior Judicial Analyst, Fox News Channel
Especially now, as individual rights are increasingly trampled with impunity by the state, Anthony Gregorys combination of engaging historical narrative with astute legal analysis and impassioned moral advocacy provides an overview of issues surrounding the Great Writ that is simply invaluable.
Gary Chartier, Professor of Law and Business Ethics and Associate Dean, School of Business, La Sierra University
Anthony Gregory ably demonstrates in The Power of Habeas Corpus in America that the Great Writ has a spotted and inconsistent history as well as a reputation for hope and freedom that does not align with stark expectations or reality. . . . At once a tool of liberation and authority, the writ of habeas corpus undermines State authority even as it validates and solidifies that authority. . . . Gregorys book has potentially vast ramifications for all areas of libertarian jurisprudence. It is a timely corrective and an impassioned warning to libertarian lawyers, think tanks, and policy analysts who have lost their way and in the name of liberty brought us deeper into statism. . . . for the writ to be an instrument for good, society writ large needs to shift its values toward libertarianism. Of course, that solution pertains to all social problems and would remedy any number of governmental harms. Gregory may not have indicated specific alternative remedies that could replace the Great Writ, but he has shown us that received opinion about government-backed protections can impede our search for liberty.
This tension between the ideal and the reality of habeas corpus is central to Anthony Gregorys excellent new book, The Power of Habeas Corpus in America. Gregory, a research fellow at the Independent Institute, provides a valuable contribution to the literature on habeas corpus, one with broader implications for civil liberties, state power, and justice in a liberal democracy. The book does not attempt to capture all of the complex doctrinal shifts in habeas over the centuries. Instead, it synthesizes these developments to underscore a paradox: the way habeas serves as both as an engine and a curb on state power. In the process, Gregory charts how power dynamics have historically shaped struggles over habeas and its role in American society. . . . Gregory is right to acknowledge habeas shortcomings, as Supreme Court decisions upholding the writs availability at Guantanamo have largely impacted detentions at the margins. He thus captures the continuing gap between the Courts proclamations of the writs importance and its impact at the ground level.
After 9/11, lawyers and policy makers began debating whether the standard rights of the accused, including habeas, should apply to suspected terrorists. An increasingly vocal segment of the population championed the idea that national security trumped civil liberties. Anthony Gregory, a Research Fellow at the Independent Institute, was troubled by post 9/11 detention policy particularly the 2006 Military Commissions Act and activity at Guantanamo so he set out to write a policy paper on habeas corpus. That paper turned into the sweeping tome, The Power of Habeas Corpus in America. The book is getting great reviews. . . . Since most of us agree that an accused person should receive some form of due process, how is it that we continue to see habeas rights erode? Gregory blames our political culture, which supports broad executive detention powers as well as an enormous domestic prison system. . . . If you . . . are ready to learn how habeas corpus is simultaneously under-appreciated for its potential and over-celebrated in its actual power, pick up at copy of The Power of Habeas Corpus in America.
FindLaw U.S. Supreme Court News and Information Blog
Among libertarians generally, there is a somewhat dependable tendency to hark back to the halcyon days of a supposed free age somewhere in the past, and to spotlight certain related features of Anglo-American legal history in service to that narrative. As those features are romanticized, they become totemic symbols of the classical-liberal tradition and its precursors, and are thus held away from criticism and analysis to a regrettable extent. In his new book, The Power of Habeas Corpus in America: From the Kings Prerogative to the War on Terror, Anthony Gregory attends to this propensity as it applies to the recondite legal doctrine of habeas corpus. . . . Throughout his book, Gregorys review is enriched by his understanding that habeas corpus is, like most creatures of the common law, not a single, clear-cut doctrine to be assessed as one monolithic whole. It is a swirling medley of historical, political, and legal currents that have often flowed at cross-purposes, with expediency, not principle, determining the tides. . . . The radicalized form of habeas Gregory hopes for would be a departure from historical precedent, not a continuation of itand that is exactly the point. Because his interpretations and analyses of the historical record are radical, Gregorys book will almost certainly bear all of the familiar cries of cynicism from all quarters of power apologists. . . . Gregorys is a scholarly achievement, equipped even with a chart of historical terms. . . . Gregorys book is important, then, not just for painting a more accurate picture of habeas corpus, but also for, by logical extension, disenchanting those who would see a libertarian Eden somewhere in the past. If there is something approaching a libertarian paradise to be had in the future, it cannot be a result of backward-looking invocations of a varied Anglo-American legal history; rather it will have to issue from a healthy, prudent distrust toward that past, an unflinching readiness to subject it to just the kind of trenchant scrutiny provided in The Power of Habeas Corpus in America. . . . exhaustively, expertly researched and teeming with footnotes and legal terms of art, his book does not read like a trendy member of the New York Times nonfiction bestsellers, though it is never wearisome or needlessly donnish in its air. . . . The Power of Habeas Corpus in America presents a rich reward, as comprehensive a probe into such a massive history as can be advanced in 416 pages. If this is a promise of things to come from Gregory, history lovers and libertarians are in for a treat.
Future of Freedom
The Power of Habeas Corpus in America is a sophisticated biography of that most essential legal right, the negative liberty not to be arbitrarily imprisoned by the state. . . . But despite the central importance of habeas in Anglo-American law and legal folklore, Gregorys study is anything but a soaring law-school graduation speech about the majestic triumph of legal principle. Instead, Gregorys account of the Great Writ reveals its history is characterized by politicization, unfulfilled promises, legal technicalities, power struggles and hypocrisy, as much as a story of liberation and justice. . . . Gregorys story, like almost any other legal history of the United States, features the ongoing struggle between states rights and the authority of central government as a major theme. Yet although states rights have often been a legalistic fig leaf for Jim Crow, Gregory shows that local legal autonomy has at times stood against white supremacy. . . . Gregorys book is appended with incisively detailed legal-political analyses of landmark habeas cases, from Korematsu, which gave the all-clear to wartime internment of Japanese-Americans, to more recent cases in our Global War on Terror. . . . Gregory blisteringly notes that the U.S. criminal justice has become a system of slavery, rape and torture, and he urges the expansion of habeas reviewwhich has been whittled away since the Rehnquist court to a vestigial nubfor federal prisoners. . . . Anthony Gregory has written a book that is both fiery and cool-headed, and he is an excellent guide to the circuitous and bumpy ride that is the history of the Great Writ.
The Power of Habeas Corpus in America is a monument to meticulous research. . . . One gets the impression the author was so much immersed in his material that he couldnt leave it even after three hundred pages. . . . [I]t is hard to miss Gregorys main point, which is made with particular force. . . . Gregory provides testimony to the value of the writ, which was clearly established in Common Law and then brought to the infant American Republic by its constitutional architects who had been schooled in British law. It is prominently on display, or so it would seem, in the Constitutions Article One, Section 9, and Clause 2. There, as every college student in constitutional law finds out, the principle of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. . . . Despite its place in the Constitution and its earlier appearance in Common Law, habeas corpus, as Gregory proves, has just as often advanced the power of the state as protected the individual against arbitrary arrest and incarceration.
2013 PROSE Award for Best Book in Law and Legal Studies (awarded by the Association of American Publishers)
2014 Silver Medal IPPY Award Winner (Political/Economic/Legal/Media) (awarded by The Jenkins Group and Independent Publisher)