National security issues often force the state to reconsider how it balances danger against liberty, producing shifts in governance that persist long after generative threats dissipate. Berkeley law professor Amanda L. Tyler has written a landmark account of this phenomenon, centering on the history of the Anglo-American habeas corpus privilege. The breadth of her intended audience—which includes historians, legal academics, lawyers, and judges—reflects the project's unusual ambition. Tyler's work is a staggering legal history, and one that will influence institutional responses to America's post-9/11 threat matrix.
Broadly speaking, the habeas privilege entitles detainees to judicial review of their confinement. Tyler's historical account revolves around what I call thickness (how much process the privilege entails) and coverage (who owns it). (My discussion of privilege thickness and coverage tracks that from a full-length law review article, Lee Kovarsky, “Citizenship, National Security Detention, and the Habeas Remedy,” California Law Review 107 [2019]: 867.)
Whereas the other major post-9/11 habeas history, Paul Halliday's Habeas Corpus: From England to Empire (Cambridge, MA: Belknap Press of Harvard University Press, 2010), focuses on the common law privilege, Tyler devotes her attention to the English Habeas Corpus Act of 1679. Specifically, her account homes in on Section 7 of the 1679 Act, which required that those held on suspicion of felony be indicted within approximately 6 months or be released.
Tyler argues that the way the United States has constructed its wartime habeas rules is roughly consistent with the operation of the English statutory privilege, both in terms of thickness and coverage. She traces the American privilege legacy through many of the most (in)famous presidential responses to national security threats: Thomas Jefferson's attempt to put down the Burr-Wilkinson plot, Abraham Lincoln's unilateral suspension of habeas corpus during the Civil War, Andrew Johnson's punishment of those who conspired on behalf of the defeated Confederacy, Franklin D. Roosevelt's mass internment of Japanese Americans during World War II, and George W. Bush's “war on terror” that followed the Al Qaeda attacks on the Pentagon and World Trade Center in 2001.
In terms of thickness, Section 7 required that a privileged detainee must be tried in a civilian court or released. Tyler therefore sides with Justice Antonin Scalia's powerful dissent in Hamdi v. Rumsfeld (2004), which called for the release of an American who was denied a civilian trial and who was instead “preventatively detained” by the military. For Tyler, history demonstrates that the habeas privilege was more than a trans-substantive remedy requiring courts to scrutinize the legality of detention, the lawfulness of which was determined by reference to external legal authority. Instead, the habeas privilege was itself the source of a substantive rule requiring that covered detainees be prosecuted for crimes or released.
Section 7 also captured a basic feature of sovereign power bearing on whom the privilege covers. Those who worked against the English state could be subdivided into detainees who enjoyed the protection of domestic law—prisoners with “allegiance”—and detainees who did not. Allegiant prisoners could be punished under domestic criminal law, but their allegiance also entailed privileges that included habeas protection. For example, to treat American colonists as prisoners of war (POWs) lacking the privilege would be to suggest the very idea that England was fighting against: that the colonists no longer owed allegiance to the crown. (For that reason, England eschewed the POW designation for captured American colonists during much of the Revolutionary War).
Tyler's argument stands atop a mountain of new archival research, but the historical case for a thick American privilege is not quite airtight. First, the writing and speeches on which she relies do establish that many rights are largely useless without a habeas remedy, but that proposition is consistent with the idea that the privilege enforces rights that originate elsewhere. Second, although she correctly underscores the importance of Section 7 to American constitutional framers, such importance was reflected in rules beyond the privilege mentioned in the Constitution's Suspension Clause; namely, rights to jury trials (Article III), to indictments and due process (Amendment V), and to speedy criminal proceedings (Amendment VI).
Boumediene v. Bush (2008) is the leading Supreme Court decision on coverage, holding that the Constitution guaranteed the privilege to noncitizen enemy-combatant designees held at the American naval base in Guantanamo Bay, Cuba. Tyler supports the outcome in Boumediene, but with two caveats. First, because of the role allegiance played in the statutory habeas process, she is not convinced that English history alone supports that result. Second, the various grounds on which she does support Boumediene would not necessarily entail coverage in places under less American control. Tyler's position is therefore distinguishable from my own, wherein the habeas privilege should be extended to anyone held in American custody. That difference traces in part to the methodological choice mentioned: Tyler's emphasis on allegiance as the Section 7 coverage touchstone. The common law privilege, by contrast, was more flexible, was premised on personal jurisdiction over the custodian, and permitted noncitizens greater opportunity to challenge their combatant status determinations. And if that common-law framework is applied to enemy-combatant designees held by the United States on foreign soil, then those detainees more clearly retain a remedy to contest American detention.
Whatever position one ultimately takes on thickness and coverage, however, Professor Tyler's book is already one of the twenty-first century's two most important habeas corpus histories. That status is richly deserved.
