Habeas Corpus and the Tyranny Gap

JB

Several people have asked about Chief Justice Marshall's statement in the 1807 case of Ex Parte Bollman that the right of habeas corpus depends on statute even though it should be interpreted according to the common law: "for the meaning of the term habeas corpus, resort may unquestionably be had to the common law; but the power to award the writ by any of the courts of the United States, must be given by written law." 8 U.S. 75, 94-95. Doesn't this prove that the Constitution secures no right to habeas corpus, and that habeas corpus is purely a creature of statute? If so, wasn't Attorney General Gonzales technically correct that there is no constitutional right to habeas?

The answer is no.

Let me first point out that in the current litigation over the Military Commissions Act of 2006 (MCA) the Bush Administration is not taking Gonzales' position. It is arguing that either the MCA withdraws rights that fall outside of the minimum constitutional requirements of habeas corpus or that the remedy the MCA offers is an adequate substitute for habeas. Let me repeat: even Gonzales's own Justice Department is not making as radical a claim as he apparently made before the Senate Judiciary Committee. The arguments in this case start with the assumption that there is a constitutional core of habeas that Congress may not rescind without falling afoul of the Constitution, even if federal habeas jurisdiction is provided by statute. The dispute in the MCA litigation is the scope of that constitutional core.

How do we know that there is such a constitutional core?

The drafters of the 1787 Constitution chose language that preserved the common law right of habeas corpus rather than specifically fashioning a new constitutional right. As a result, the 1787 Constitution left in place the common law right of habeas and restricted Congress's ability to suspend it. And, as we shall see, there are structural reasons why, when elements of sovereignty were transferred from the states to a new federal union, the principle of non-suspension meant that habeas corpus had to apply to a new series of situations.

To understand Chief Justice Marshall's remark in Ex Parte Bollman, we must remember that the 1787 Constitution does not, on its face, require that there be any federal courts except for the Supreme Court. Congress soon created such courts, and created jurisdictional statutes which, among other things, gave these courts the right to hear writs of habeas corpus.

However, if Congress had not created any lower federal courts, there would still be a common law right of habeas corpus available in state courts. Imagine that the governor of a state imprisoned a political opponent by declaring him an enemy of the state. This, of course, is the paradigm case for why the English common law created habeas-- to limit the King's ability to imprison people outside of the rule of law. In this case, the common law courts would be able to issue writs of habeas corpus to the governor.

Now imagine, after the ratification of the 1787 Constitution, that the President of the United States declares some one an enemy of the state and throws him in jail. Suppose further that there are no federal courts except the Supreme Court. Presumably either the Supreme Court would have the authority to issue a common law writ of habeas under its original jurisdiction (But cf. Marbury v. Madison) or, more likely, state courts could issue such a writ, with appellate review by the U.S. Supreme Court.

But could the state courts do this, you may wonder? How could they have jurisdiction to compel the President to do anything? Recall that people were very concerned that the new federal government would destroy the liberties of the citizenry. It is unthinkable that the ratifiers would have allowed the new President to be free from the writ of habeas corpus when even the King of England, George III, was limited by that writ.

Thus, if there had been no federal courts, the states would retain not only the right to restrain their own officials, but also the officials of the new federal government for violations of law, subject always to review by the Supreme Court of the United States.

As it turned out, Congress created federal courts almost immediately, and gave them the power, by statute, to issue writs of habeas corpus. In this sense Marshall's statement in Ex Parte Bollman is technically correct that the power of *federal* courts to issue writs comes from statute, and not directly from the Constitution. But it does not follow that the power of *state* courts to issue writs of habeas corpus comes only from statute. Moreover, it does not follow that Congress may limit the power of federal courts to issue writs of habeas corpus without running afoul of the Suspension Clause. Here's why:

First, the Supreme Court later held in Tarble's Case, 80 U.S. 397 (1872), that state courts do not generally have the power to issue writs of habeas corpus to federal officials acting under claim of or color of federal authority. Justice Field argued that otherwise, no federal decision or action could be final unless it received the consent of all the courts in all of the states. Given that in 1872, the country was still in the middle of Reconstruction, with federal officials despised in the newly conquered South, Field's reasoning made a lot of sense. If state courts in South Carolina and Georgia could repeatedly haul federal officials into court on writs of habeas, federal enforcement of law in the South would come to a standstill.

Some people think Tarble's case is wrongly decided-- an aberration caused by the features of the Reconstruction period. It also makes sense only if you assume that there had to be lower federal courts; but for the moment, let's assume that it is correct. If Tarble's Case is correct, it would mean that Congress was constitutionally *obligated* to vest habeas jurisdiction in the federal courts to the extent that common law state courts collectively enjoyed in 1789. Why? Because otherwise the Suspension Clause would be completely undermined. The President would be able to do what the King of England could not do: throw people in jail under claim of executive authority without any right of judicial redress. The President could easily become a tyrant-- precisely the thing that the framers and ratifiers of the 1787 Constitution feared. It is simply unthinkable that the people who ratified the 1787 Constitution would have agreed to a President who could do what even George III could not do.

So if Tarble's case is correct, then Congress has a constitutional obligation to create statutory jurisdiction for habeas in the federal courts.

Second, even if Tarble's case is incorrect and state courts can issue habeas orders to federal officials, there might be other reasons why the Constitution required Congress to create federal habeas jurisdiction. In Ex Parte Bollman itself, Marshall noted that

It may be worthy of remark, that this act was passed by the first congress of the United States, sitting under a constitution which had declared 'that the privilege of the writ of habeas corpus should not be suspended, unless when, in cases of rebellion or invasion, the public safety might require it.'

Acting under the immediate influence of this injunction, they must have felt, with peculiar force, the obligation of providing efficient means by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation, they give, to all the courts, the power of awarding writs of habeas corpus.

Why would Congress feel an obligation to create federal habeas if state courts could issue writs of habeas corpus against federal officials?

Assume that Tarble's case is wrong and that state courts could issue these writs. The 1787 Constitution created a new federal government with new powers superimposed over the old state governments, and claimed some of their powers-- particularly in the areas of foreign affairs, maritime regulation, and the creation and maintenance of federal territories.

These new powers, and the creation of a new government to exercise them, created new classes of cases-- and new possibilities for executive abuse-- where habeas might be needed. For example, the President might have arrested a person in the federal territories (not controlled by any state) or on the high seas; or, as the English Kings sometimes did, dragged their political opponents outside the borders of the country to attempt to escape the jurisdiction of the English courts. Moreover, the Constitution authorized the creation of new federal crimes, including treason against the United States, which was the subject of Ex Parte Bollman itself.

For some or all of these new situations, Congress might want to vest jurisdiction to test the legality of federal actions solely in the federal courts. Moreover, now that these new situations and new powers existed, there was a real question whether state courts could issue writs to restrain these illegal exercises of executive power. For example, states might not have jurisdiction over what happened in the federal territories, including the District of Columbia. If the suspension clause merely preserved the historical scope of habeas jurisdiction *in each state*, then the President would be free to drag people into federal territories (including not only military bases but also the District of Columbia) and keep them in federal prison there forever without charges. Put a different way, the new federal government created the possibility of a "tyranny gap" (to use an expression of my friend Akhil Amar). Once again, the President would have greater powers than the King of England, George III.

To avoid this result, there was an easy and obvious structural argument: The Suspension Clause should be read to hold that preservation of the common law writ of habeas corpus must include the power of federal courts to issue the same sorts of writs against the federal government that states could have issued against their own governors and executive officials before 1789, or that English courts could have issued against the Crown. (If Congress did not choose to create federal courts, the principle would require that Congress vest this jurisdiction in some group of state courts, most likely with a right of appeal to the U.S. Supreme Court. But in 1789 Congress made its choice: it created a federal judiciary and gave it jurisdiction over habeas.)

Now we see why Chief Justice Marshall, even before Tarble's Case, thought that Congress felt an obligation to create federal habeas jurisdiction. Ex Parte Bollman was a prosecution for treason arising in a federal territory, the District of Columbia. It was one of these new cases created by the formation of a new central government superimposed over the states, a situation where state jurisdiction might not be available. As Marshall said,"for if the means be not in existence [to deal with such cases], the privilege itself would be lost, although no law for its suspension should be enacted."

Hence, the basic principle of the suspension clause is: if courts in a pre-ratification state government, or in the United Kingdom, had jurisdiction to bring writs of habeas corpus against their executive officials, either state courts or federal courts (if state courts lack jurisdiction) must have a structurally equivalent power. Congress has an obligation to create federal habeas jurisdiction sufficient to achieve this result. This principle outlines the constitutional core of habeas corpus. It is a matter of constitutional right, and it may not be abridged by Congress except under the conditions outlined in the Suspension Clause.

Call this principle the principle of structurally equivalent sovereignty, or, more to the point, the principle of structurally equivalent tyranny. This principle avoids the tyranny gap that would otherwise have been created by the formation of a new federal government. The principle would have made a great deal of sense at the time of the ratification of the Constitution. At the time of the Revolution, Great Britain was a major empire and maritime power, with colonies and military forces strewn around the known world. There was a great deal of mischief the King of England could do outside the territory of the British Isles, and courts were needed to keep him in line. The new American nation was becoming a lot like its British predecessor. It too, was developing into a maritime power, and it too, was amassing a sizeable quantity of new federal territory, some ceded from the states, others newly acquired. The Northwest Territory, created in 1787 before the 1789 ratification, was larger than any of the existing states. Indeed, after the Louisiana Purchase of 1803, the scope of federal territories was larger than all of the existing states put together. The idea that habeas corpus did not apply to this vast territory-- much less the nation's capitol-- would be unthinkable. The structural principle I've outlined here is the best way to make sense of what the suspension clause did-- and what it required-- for an emerging continental and naval power.

In addition to the constitutional core of habeas, Congress may create additional habeas jurisdiction. This is sometimes confusingly called "statutory habeas," to distinguish it from "constitutional" habeas. As we have seen all federal habeas jurisdiction is statutory, but some is required as part of the constitutional core.

Although Congress must pass statutes to give lower federal courts power to issue writs of habeas corpus, it does not follow, as Attorney General Gonzales seemed to suggest, that individuals have no rights of habeas corpus guaranteed by the Constitution. There is a core of habeas protection drawing on the common law that must exist somewhere in the legal system, and must be enforceable by some courts, whether federal or state. Congress may expand habeas jurisdiction beyond that constitutional core.

The issue at stake in the Guantanamo Bay litigation is whether the constitutional core of habeas applies to aliens who have been accused of being enemies of the state and confined in territory controlled by the United States. If only statutory habeas applies to the Guantanamo Bay detainees, Congress may withdraw habeas jurisdiction.

The Supreme Court has not squarely addressed this issue in Rasul v. Bush. Although the majority opinion suggested that such persons were protected by the common-law habeas right protected under the Constitution, its specific holding was only that-- in the legal context prior to the MCA-- they were at the very least entitled to statutory habeas rights.

If the MCA's alteration of habeas falls within the constitutional core of habeas, Congress and the President must either demonstrate that we are in a period of rebellion or invasion, or that it has offered an adequate substitute for habeas. Not surprisingly, the Bush Administration's major argument before the courts is that the Combatant Status Review Tribunals-- and the limited appeal from the CSRTs to the D.C. Circuit-- offer an adequate substitute for habeas.

I've given my reasons why I think the constitutional core of habeas applies to aliens within the United States and to the Guantanamo Bay detainees here. That is why I think there are serious problems of constitutionality raised by the MCA. We are in a position remarkably similar to that of the British Empire before the American Revolution; just as King George was limited by the British courts in how he could treat aliens in British territories held overseas, so too President George is limited in how he can treat aliens today.
Posted 1:30 PM by JB [link]