Habeas Corpus - Another Purported Safeguard Ignored When Convenient
We know many things about habeas corpus. We know that it goes back to the Magna Carta and that the U.S. Constitution affirmed this bulwark of Anglo-American liberty. We know that habeas prohibits jailing people without cause, and that it remained healthy throughout U.S. history, except during wartime, until George W. Bush’s 2006 Military Commissions Act. And we also know that in 2008, the Supreme Court guaranteed basic due process rights for Guantánamo’s inmates.
The trouble is that none of these things are true. Five years ago, I believed the conventional civil libertarian narrative and began writing a paper to criticize the Bush administration and its nearly unprecedented violation of this sacred right.
My research revealed that much of what I knew about habeas corpus was wrong, and that many well-intentioned people had a romanticized view of the great writ. I published my findings in my Independent Institute book The Power of Habeas Corpus in America: From the King’s Prerogative to the War on Terror, and I found that as with other idealized state functions, habeas corpus has an uneven history.
Indeed, habeas is a government power — specifically a judge’s power to summon and question a case involving detention — and judges have used it to centralize their own authority. About a century ago, legal scholar Edward Jenks controversially wrote: “the most embarrassing discovery [is that] the more one studies the ancient writs of Habeas corpus … the more clear grows the conviction, that, whatever may have been its ultimate use, the writ of Habeas corpus was originally intended not to get people out of prison, but to put them in it” [emphasis in the original]. Jenks oversimplifies, but his point certainly complicates the popular understanding.
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