Ignoring The Constitutional Right to Habeas Corpus

Just signed into law by President Bush today, the Military Commissions Act of 2006 denies the habeas corpus writ to many of those seized by the government in its War on Terror, preventing them from challenging their detention in court. By combining benighted public policy with insensitivity to individual rights, that provision totally ignores the constitutional basis of the habeas corpus guarantee, which allows suspension of the writ only when the nation faces invasion or rebellion. Indeed, the habeas guarantee in the Constitution was critical to the balance struck by the fifty-five Framers between their desire for a vigorous government and their fear of governmental power.
Through the four months in which they sat during the summer of 1787, the Convention delegates moved steadily towards greater constraints on power in the new government. After the first ten weeks of deliberations, the delegates had broadly defined the powers of the new legislature: “to legislate in all cases for the general interests of the Union, and also in those cases to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation.” Early on, John Rutledge of South Carolina (and others) objected to this provision, demanding an “exact enumeration” of legislative powers.
At the end of July, Rutledge solved his own objection. While the Convention took an eleven-day recess, he chaired the five-member Committee of Detail that assembled a draft constitution based on nineteen skeletal resolutions the delegates had approved. The committee promptly jettisoned the broad grant of general legislative power in favor of eighteen enumerated, specific powers.
Yet when the delegates reconvened on August 6, 1787, they continued to seek additional tools for controlling the powers of the new government. One of those tools was the habeas guarantee.
Habeas corpus had been mentioned in the “Draught of a Federal Government,” submitted to the Convention on May 29, 1787 by Charles Pinckney (also of South Carolina). Nothing was done on the issue until August 20, when Pinckney offered language to the Convention that would guarantee the habeas corpus writ. Eight days later, he raised the issue again. In response, Rutledge insisted that the individual’s right to the habeas writ should be “inviolable,” and protested against a provision that would allow suspension of the habeas guarantee for even twelve months. Rutledge could imagine no justification for a nationwide suspension of habeas corpus.
Gouverneur Morris of Pennsylvania attempted to bridge the gap between Pinckney and Rutledge, proposing that habeas corpus could be suspended only in “cases of rebellion or invasion.” The compromise was adopted, though three states (South Carolina, North Carolina, and Georgia) opposed the compromise, insisting that Congress should never be able to suspend the writ.
The Framers placed the habeas guarantee in Article I, Section 9, of the Constitution, next to other restrictions on Congress, including the prohibitions against export taxes, bills of attainder, and ex post facto laws. None of those restrictions can be modified by Congress. Rather, they are inscribed as inherent rights of the people against Congress. The final language, never amended since 1787, provides that “[t]he 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.”
In its new legislation, Congress unconstitutionally eliminates the habeas remedy at a time when the nation is neither being invaded nor facing a rebellion. During the 1788 debate on ratification of the Constitution in Massachusetts, a delegate emphasized that the writ can be suspended only at those “clear and certain times” of rebellion and invasion, adding: “whenever these shall cease to exist, the suspension of the writ must cease also.”
The founding generation was uniformly devoted to preserving the protections of habeas corpus. From France, where he served as the American ambassador, Thomas Jefferson insisted that liberty depended on “the eternal and unremitting force of the habeas corpus laws.” Alexander Hamilton agreed, noting that Blackstone “is everywhere peculiarly emphatical in his encomiums on the habeas-corpus act, which in one place he calls ‘the BULWARK of the British Constitution.’” Indeed, Hamilton wrote, “the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny.” For him, the habeas guarantee provided, with the Constitution’s other restrictions on the government, “great[] securities to liberty and republicanism.”
The importance of the habeas guarantee was reinforced during the dispute over the Alien and Sedition Acts. In 1798, James Madison objected to the provision in the Alien Act that allowed suspension of “sacred” right of habeas corpus, “although the Constitution ordains that it shall not be suspended unless when the public safety may require it, in case of rebellion or invasion — neither of which existed at the passage of the act.” The protests against the Alien Act stirred such public uproar against any suspension of habeas corpus that President John Adams never enforced the law, and later commentators have consistently denounced the statute.
Having flouted both the letter and the spirit of the Constitution, the members of Congress have fled Washington, most to seek reelection. American voters should ask each whether he or she supports the Constitution, or the Military Commissions Act of 2006. They cannot support both.
(This commentary draws on a brief amicus curiae I submitted on behalf of dozens of historians led by Prof. Paul Finkelman of Albany Law School, in Al-Odah v. United States, which is still pending in the U.S. Court of Appeals for the District of Columbia. Rachel Nash and Tamar Tal of Ropes & Gray, LLP contributed terrific work on that brief.)