The ‘Great Writ’ and our rights

The Washington Times Weekly - - Culture, Etc. -

Dur­ing my brief foray at Duke Uni­ver­sity Law School, the dean, E.R. Latty, started us off with a lec­ture on the writs by which the an­cient courts of Mother Eng­land had en­forced their sway. To get jus­tice or re­solve a dis­pute, a sub­ject had to ap­ply to the higher courts for a spe­cific writ ei­ther to chal­lenge or seek re­dress be­fore some of­fi­cer of the law or lower court. The trou­ble with writs, dean Latty said, was that they of­ten were too nar­rowly drawn to fit the ever-grow­ing com­plex­i­ties of me­dieval life.

As an ex­am­ple, he cited the Writ of Wowsin, which one had to seek to stop a neigh­bor from climb­ing over the writ-seeker’s stone wall dur­ing the light of the full moon to steal his mel­ons. If, how­ever, the fence were of wood, if the moon were in the quar­ter or if the neigh­bor was steal­ing pump­kins, the writ-seeker was out of luck. Only af­ter some time did he tell us that the Writ of Wowsin was a fic­tion. But the point was made. Writs had more to do with the power of au­thor­ity than the abil­ity of a ci­ti­zen to se­cure jus­tice.

Au­thor Paul D. Hal­l­i­day, a Uni­ver­sity of Vir­ginia his­to­rian, would hap­pily rec­og­nize the Writ of Wowsin. In what was a heroic re­search quest, Mr. Hal­l­i­day has un­der­taken a needed and timely re-ex­am­i­na­tion of what some call the “great writ of lib­erty” — the writ of habeas cor­pus — and con­cludes that its ba­sic pur­pose is about who gets to ex­er­cise power and not at all about in­di­vid­ual rights as most of us quite wrongly think.

Whether one thinks the writ of habeas cor­pus is an in­di­vid­ual’s bas­tion against op­pres­sion or an un­fair weapon by which the Amer­i­can Civil Lib­er­ties Union and other do-good­ers thwart the ef­fi­cient work­ings of the jus­tice sys­tem, Mr. Hal­l­i­day tells us both views are just plain wrong.

What Mr. Hal­l­i­day did was jour­ney to Lon­don, to the archives of the King’s Bench, Bri­tain’s his­tor­i­cal high court, where he pored through more than 11,000 re­ports of plain­tiffs seek­ing the writ as it evolved from 1500 through 1800. Based on his as­ton­ish­ing amount of dig­ging, he con­cludes that from its first ut­ter­ance, the writ was pri­mar­ily a tool by which the king’s most se­nior judges could ex­am­ine and over­see the proper func­tion­ing of those who held power in fran­chise di­rectly from the monarch — lower court judges, jail­ers, city coun­cils, navy cap­tains — in an ever-widen­ing net­work of gov­ern­ment and ser­vice.

So the writ is not a weapon of the in­di­vid­ual at all. Rather, it is a mech­a­nism by which a su­pe­rior en­tity of gov­ern­ment can com­pel a lesser unit to up­hold cer­tain stan­dards. This may sound like the kind of pre­cious pars­ing that moot-court de­baters get into, but it isn’t. Just ask the ter­ror­ist de­tainees sit­ting in cages in Guan­tanamo if you don’t be­lieve me.

At its nar­row­est, the writ of habeas cor­pus ad sub­ji­cien­dum was sup­posed to or­der a jailer, a sher­iff or some other gov­ern­ment body hold­ing a pris­oner without charges to “have the body” brought be­fore the King’s Bench to de­ter­mine whether there was a just cause to try him, free him on bail to await trial later or free him from un­law­ful im­pris­on­ment.

Over the cen­turies, in­di­vid­u­als sought the writ to free them­selves from navy press gangs, cruel mas­ters, abu­sive husbands and 100 other causes as the power of the writ grew with the ever-ex­pand­ing Bri­tish Em­pire and the im­pe­rial power of the throne de­volved into 100 colo­nial court­rooms where scores of lan­guages were used. Mr. Hal­l­i­day’s sec­ond point is that as the em­pire ex­panded, the writ it­self be­came cov­ered in a myth that pre­tended its pur­pose was some­thing other than what it was.

A far more im­por­tant point that Mr. Hal­l­i­day makes is that while in­di­vid­u­als have and still can seek su­pe­rior courts to in­ter­cede on their be­half through the in­vok­ing of the writ, it is not an open-ended right and can be — and all too of­ten has been — sus­pended at the will of the higher power, be it court, monarch or chief ex­ec­u­tive. Nowhere has that been truer than here in Amer­ica.

While the writ gen­er­ally is con­sid­ered to be a guar­an­tee of our en­shrined U.S. Con­sti­tu­tion, some de­bate is go­ing on right now about whether that is, in fact, so, and even if so, just how far the writ’s reach runs. The Con­sti­tu­tion it­self is tan­ta­liz­ingly equiv­o­cal: Ar­ti­cle 1, Sec­tion 9 states, “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.”

Abra­ham Lin­coln did not hes­i­tate to sus­pend it to pre­vent sym­pa­thiz­ers with the Con­fed­er­acy from stam­ped­ing states such as Mary­land into re­bel­lion. Ulysses Grant sus­pended it in nine South Carolina coun­ties in a bid to stamp out the Ku Klux Klan. Franklin D. Roo­sevelt se­lec­tively sus­pended it against Amer­i­can cit­i­zens of Ja­panese de­scent. Bill Clin­ton (in the wake of the Ok­la­homa City bomb­ings) signed a con­gres­sional tight­en­ing on the statute of lim­i­ta­tions on seek­ing the writ in do­mes­tic ter­ror­ism cases.

This brings us smack into the mid­dle of the cur­rent brawl over when and how the writ may be used to aid in­di­vid­u­als charged with ter­ror­ist acts. Can habeas be in­voked to grant them ac­cess to fed­eral crim­i­nal courts where other civil lib­er­ties and pro­tec­tions can be claimed? As a foot­note, Mr. Hal­l­i­day’s writ­ings on this topic have been an in­flu­ence on the land­mark case Boume­di­ene v. Bush, which cen­ters squarely on whether the Guan­tanamo de­tainees can use the writ to get into U.S. courts. This book of metic­u­lous his­tory is as fresh as to­day’s head­lines and should be re­quired read­ing for any­one con­cerned about our rights and our se­cu­rity.

James Srodes is a Wash­ing­ton jour­nal­ist and au­thor. His lat­est book is “Franklin: The Es­sen­tial Found­ing Fa­ther” (Reg­n­ery, 2002).

DUR­ING THE CIVIL WAR, PRES­I­DENT ABRA­HAM LIN­COLN SUS­PENDED THE RIGHT OF HABEAS COR­PUS SO THAT PRIS­ON­ERS COULD BE HELD WITHOUT CHARGES.

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