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.
Lessig, Lawrence and Cass Sunstein (1994). “The President and the Administration,” Columbia Law Review 94 (January ): 1. http://www.lexisnexis.com/hottopics/lnacademic/.
Boumediene v. Bush, 553 U.S. 723 (2008).
© Copyright 2011 by the Author, Margaret S. Hrezo.