Amicus Curiae Brief — Rumsfeld v. Padilla

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IN THE

Supreme Court of the United States

DONALD RUMSFELD, Secretary of Defense,

Petitioner,

JOSE PADILLA and DONNAR. NEWMAN,

as next friend of JOSE PADILLA,

Respondent.

On Wait oF CERTIORARI TO THE UNITED STATES

Court OF APPEALS FOR THE SECOND CIRCUIT

BRIEF AMICI CURIAE OF LAW PROFESSORS WITH A

PARTICULAR INTEREST IN HABEAS CORPUS LAW

LISTED HEREIN IN SUPPORT OF THE RESPONDENT

MICHAEL J. WISHNIE JONATHAN L. HAFETZ

Professor of Clinical Law Counsel of Record

New York UNIVERSITY LAWRENCE S. LUSTBERG

SCHOOL OF Law GissBons, Det Deo, Dotan,

245 Sullivan Street GRIFFINGER & VECCHIONE, P.C.

New York, NY 10012 One Pennsylvania Plaza

(212) 998-647] 37" Floor

New York, NY 10119-3701

(212) 649-4743

Counsel for Amici Curiae

186838 g

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

SAMUEL R. Gross

Thomas and Mabel Long

Professor of Law

UNIVERSITY OF MICHIGAN

Law SCHOOL

625 South State Street

Ann Arbor, MI 48109

BERNARD E. HARCOURT

Professor of Law

UNIVERSITY OF CHICAGO

Law SCHOOL

1111 E. 60th Street

Chicago, IL 60637

RANDY HERTz

Professor of Clinical Law

New York UNIVERSITY

SCHOOL OF LAW

245 Sullivan Street

New York, NY 10012

JAMES S. LIEBMAN

Simon H. Rifkind

Professor of Law

Co_LumBiA Law SCHOOL

435 West 116" Street

New York, NY 10027

CAROL STEIKER

Professor of Law

HARVARD Law SCHOOL

1563 Massachusetts Avenue

Cambridge, MA 02138

AMICI*

JORDAN STEIKER

Cooper H. Ragan Regents

Professor in Law

UNIVERSITY OF TEXAS

SCHOOL OF LAw

727 E. Dean Keeton Street

Austin, TX 78705

ROBERT WEISBERG

Edwin E. Huddleson, Jr.

Professor of Law

STANFORD Law SCHOOL

559 Nathan Abbott Way

Stanford, CA 94305

CHARLES D. WEISSELBERG

Professor of Law

UNIVERSITY OF CALIFORNIA

SCHOOL OF Law - BoaLt HALL

Berkeley, CA 94720

Larry W. YACKLE

Professor of Law

BosTon UNIVERSITY

SCHOOL OF Law

765 Commonwealth Avenue

Boston, MA 02215

* Affiliations of amici and their counsel listed for identification

purposes only.

TABLE OF CONTENTS

TABLE OF CONTENES .occscccccccsesess ess

TABLE OF CITED AUTHORITIES ............

STATEMENT OF INTEREST ...............+..

SUMMARY OF ARGUMENT .................

oot at!”

INDEFINITE EXECUTIVE DETENTION

CONTRAVENES LONG ESTABLISHED

PRINCIPLES OF HABEAS CORPUS LAW

AND THE ENGLISH LEGAL TRADITION

eeeseeaeeoeseeseeesesesee@e~sscesee eaeege eee ee esas.

A. Habeas Corpus Prevented Indefinite

Detention Absent Suspension of the Writ

Dy Pastiemeet .. wc ccvccccsevccsscen

B. The Supremacy of the Civilian Authority

over the Military Ensured the Protections

of Habeas Corpus... ccc ccccccscces

C. Habeas Corpus Ensured Meaningful

Review for Individuals in Military

Custedy ..ccccccccsevesnenene

Page

Contents

Il. THE FOUNDING GENERATION ENSURED

THE WRIT’S PROTECTIONS AGAINST

INDEFINITE DETENTION THROUGH

THE SUSPENSION CLAUSE AND THE

SUPREMACY OF CIVILIAN RULE .....

A. In Colonial America and under the United

States Constitution, Habeas Corpus

Provided the Ultimate Safeguard against

Indefinite Detention ................

B. As in England, the Protections Secured

by Habeas Corpus Were Not Subordinated

i etek ec ceecteesce

C. Habeas Corpus Ensured Meaningful

Review for those in Military Custody . . .

i eee ek eheesedescccacceccecc:

Page

TABLE OF CITEDAUTHORITIES

CASES

Blake s Case,

105 Eng. Rep. 440 (K.B. 1814) ...............

Brown v. Allen,

SOOT GHG ccvccccescenvccncesceses

Brown v. United States,

12 U.S. (8 Cranch) 110 (1814) ...............

Bushell s Case,

124 Eng. Rep. 1006 (C.P. 1670) ............ ae

Carlisle v. United States,

Case of Fries,

OR Gan. COG Ane Oe GED ccccsceccseces

Commonwealth v. Cushing,

NO ee

Commonwealth v. Harrison,

OS Be Gee coccecesceesaccsdceuesas

Crosby s Case,

88 Eng. Rep. 1167 (K.B. 1694) ..............

Darnels Case,

yt FY & Ft fk.

Downie s Case,

FE ED

Cited Authorities

Page

Ex parte Bollman,

8 U.S. (4 Cranch) 75 (1807) ........... 20, 24, 25, 26

Ex parte Merryman,

17 F. Cas. 144 (C.C.D. Md. 1861) ............ 21

Ex parte Milligan,

Fe Cee OP COED ccccccuccoenccoecs 21, 30

Ex parte Quirin,

Dah PD ccsececuenesesseedene dunt

Fisher v. Baker,

I DED ¢ odcccuceuususeubauaiun

Goldswain s Case,

96 Eng. Rep. 711 (C.P. 1778) ..........22-6-;

Harding s Case,

86 Eng. Rep. 461 (K.B. 1690) ...............

Howel’s Case,

74 Eng. Rep. 66 C.P. (1587) .................

In re Stacy,

10 Johns. 328 (N.Y. Sup. Ct. 1813) ............

INS v. St. Cyr,

PPE nsneccneeneasedcensecse

Klopfer v. North Carolina,

ee PED ccccedecesadccecisteces

Cited Authorities

Layer s Case,

16 How. St. Tr. 93 (K.B. 1722) ..............

Lockington s Case,

Bright (N.P.) 269 (Pa. 1813) .................

Parkyns ' Case,

13 How. St. Tr. 63 (K.B. 1696) ..............

Peter s Case,

74 Eng. Rep. 628 (C.P. 1586) ................

R. v. Despard, -

101 Eng. Rep. 1226(K.B. 1798) .............

R. v. Earl of Orrery,

| 8 &%] ¢ By ere

R. v. Lee,

83 Eng. Rep. 482 (K.B. 1676) ...............

R. v. Schiever,

De Ge GE Ge Gnas BUGED ccccccscccseses

R. v. Turlington,

97 Eng. Rep. 741 (K.B. 1761) ...............

R. v. White,

20 How. St. Tr. 1376 (K.B. 1746) .............

Six Members’ Case,

3 How. St. Tr. 235 (K.B. 1629) ..............

Page

vil

Cited Authorities

Smith v. Shaw,

12 Johns. 257 (Sup. Ct. N.Y. 1815) ...........

Swain v. Pressley,

SP ED cuccencavsusvesduensese

Three Spanish Sailors’ Case,

FD EE, FEW Gade BUUED cccccccecccceess

United States v. Hamilton,

De Oe ee OF GEUEED ce cceécccscdeecesse

United States v. Hoxie,

ae Gs Se Gdie Gee HED ob ccc cceccocees

United States v. Lee,

26 F. Cas. 906 (C.C.D.C. 1814) ..............

United States v. Mitchell,

26 F. Cas. 1277 (C.C.D. Pa. 1795) ............

United States v. Vigol,

28 F. Cas. 376 (C.C.D. Pa. 1795) .............

Vaughan s Case,

13 How. St. Tr. 485 (K.B. 1696) .............

Wades Case,

105 Eng. Rep. 441 (K.B. 1784) ...............

Wolfe Tones Case,

27 How. St. Tr. 614 (Irish K.B. 1798) .........

Youngstown Sheet & Tube Co. v. Sawyer,

Pe EE OPED eccecceccccececesenesss

Page

vill

Cited Authorities

CONSTITUTION, STATUTES, AND

LEGISLATIVE MATERIALS

1 Will. & Mary, c. 7 (1688) ............---e eee

7 & 8 Will. 3,c. 11 (1698) ............0 2 ee eeee

16 Annals of Congress 402 (1807) .........-..5.

SF Glam. 2.6 GAR POED ccvcccvccccccccccessnece

57 Gam. 3, 6. DEGTTID cccccccccccccccvccssccess

BULB. GOSS on cccccccccccccccesessscssees

IB UBL. 6 ZISBMD oc cccccccccccccccscececs

SR UELBE. BAO ccccccvccccsccccscsceccecess

rm, 2. REED sconccccssvcceseeusesecs

TB UBL. 6 TAGGED . on ccccccescceseccscvccsess

3B Geo. 3, 6. BE (UTSS) oc cccccccccccccccccces

Act of Mar. 3, 1863, ch. 81, § 1, 12 Stat. 755 .....

Act of Apr. 20, 1871, ch. 22, § 4, 17 Stat. 14 ......

Act of July 1, 1902, ch. 1369, § 5, 32 Stat. 691 ....

Act of Nov. 10, 1786, ch. 10, 1786 Mass. Acts

EE ee ee eT

Page

Cited Authorities

Page

Act of Sept. 29, 1789, ch. 25, § 4, 1 Stat. 95...... 23

Alien Enemies Act of July 6, 1798, ch. 66,

DUET caseuuncedeedennscdneetessucded 25

American Articles of War of 1806, enacted

PE SE tctacadecieeueeddnesencndees 23

English Bill of Rights, 1 Will. & Mary, c. 2

EE 0664 ceed veouenceneuneedenkeaneeeanes 9

Hawaiian Organic Act, ch. 339, § 67, 31 Stat. 153

DE 6 ededdbcesendercdnsceesesseneuneess 21

Habeas Corpus Act of 1641, 16 Car. 1,c.10 ..... 5,6

Habeas Corpus Act of 1679, 31 Car. 2,¢.2....... 6, 12

Habeas Corpus Act of 1816, 56 Geo. 3,c. 100 .... 12

Judiciary Act of 1789, ch. 20, § 14, 1 Stat. 73 .... 17

Magna Carta art. 39 (1215) ...............0055. 5

Mass. Const. pt. 2, c. 6, art. VII(1780) .......... 16

Mutiny Act, 1 Will. & Mary, c. 5 (1689) ......... 10

Petition of Right, 3 Car. 1, c. 1 (1628)........... 5,9

Statute of Treasons, 25 Edw. 3, c. 2 (1350) ....... 11

Cited Authorities

Gs IE, SS cucvennntenussceseneuss

SR EES «cacecevcxddesasdnsecses

ees OE, pa xccwcesectsaccccenues

ee ee A OL OD coc y heehee us eekeues

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OTHER AUTHORITIES

Amar, Akhil Reed,

“Sixth Amendment First Principles,” 84 Geo.

Si +1 ckcendeenddasenee ateuedes

Arkin, Marc M..,

“The Ghost at the Banquet: Slavery, Federalism,

and Habeas Corpus for State Prisoners,” 70 Tul.

i ie 6 ee ebb sehen bénduesakedeks

Baker, J.H.,

The Oxford History of the Laws of

ED 6-06 6400-00006 600006 60604"

Page

Cited Authorities

Page

Bator, Paul M.,

“Finality in Criminal Law and Federal Habeas

Corpus for State Prisoners,” 76 Harv. L. Rev.

EEE ccdvegi cies sedenwceeencceusuecs 13

Blackstone, William,

SoS oe ee ear ee 6, 7, 10

Cantor, Milton,

“The Writ of Habeas Corpus: Early American

Origins and Development,” in Freedom and

Reform: Essays in Honor of Henry Steele

Commager (H. Hyman & L. Levy eds. 1967) ... 15

Carpenter, A.H.,

“Habeas Corpus in the Colonies,”

FF F FF FC rrr reer ree 16

Chafee, Zechariah, Jr.,

“The Most Important Right in the Constitution,”

Ps HE DUPED ed ccvccececeeseeras 16, 19

Church, William S.,

A Treatise on the Writ of Habeas Corpus (2d ed.

ED .éNaba<bks caatdcetnecenseeeecawesie 13

Clarke, Alan,

“Habeas Corpus: The Historical Debate,” 14 N.Y.L.

Sch. J. Hem. Ris. STS (IDSS) oe cccsccccvess 16

Clode, Charles M..,

The Administration of Justice under Military and

Se PINES cc dnscccevcocestcerescease 9, 13

Cited Authorities

Page

Coke, Edward,

The Second Part of the Institutes of the Laws of

England (1817 @6.) ......2ccccccccccccceess 7

Developments in the Law—-Federal Habeas Corpus,

83 Harv. L. Rev. 1038 (1970) ...........-. 19, 20, 27

Dicey, Albert V.,

Introduction to the Study of the Law of the

CGD 6k b sks deecesnseavens 7,8, 11,14

Duke, Robert D. & Vogel, Howard S.,

“The Constitution and the Standing Army: Another

Problem of Court-Martial Jurisdiction,”

13 Vanderbilt L. Rev. 435 (1960) ............. 10

Duker, William F.,

A Constitutional History of Habeas Corpus

PD. si oeiee baud ehheceeseuhene nue 5, 8, 16, 20

Encyclopedia of the Laws of England

(A. Wood Renton ed. 1898) ..............--. 12

Farber, Daniel,

Lincoln's Constitution (2003) ............055: 21

Fairman, Charles,

The Law of Martial Rule

DD sccxesugveeuseennssaeneheenseeusess 9,11

Freedman, Eric M.,

Habeas Corpus: Rethinking the Great Writ of

(fl | PPP PPrrrrrrrrrrrrrrT rrr rer 29

xill

Cited Authorities

Page

Forsyth, William,

Cases and Opinions on Constitutional Law

SN e404 40 Gaeesduneueuanneusasaeueeieus 8

Hafetz, Jonathan L.,

Note, “The Untold Story of Noncriminal Habeas

Corpus and the 1996 Immigration Acts,” 107

es SED diab onencducavensouas 12

Hale, Matthew,

The History of the Common Law of England

SP bss ack hu cedbedeseuucaiecnc eu 10

Hertz, Randy & Liebman, James S..,

Federal Habeas Corpus Practice and Procedure

PN ib ck ded cine cia tee 2

Holdsworth, William S.,

A History of English Law .................. 6, 10, 11

Hurd, Rollin C.,

A Treatise on the Right of Personal Liberty, and

on the Writ of Habeas Corpus (2d ed. 1876) ..7, 12, 15

Hurst, Willard,

“Treason in the United States,”

58 Harv. L. Rev. 226 (1944) .........0.0..02.. 11,24

Kopel, David B. & Olson, Joseph,

“Preventing a Reign of Terror: Civil Liberties

Implications of Terrorism Legislation,” 21 Okla.

City U. L. Rev. 247 (1996) ............00005e 22

xiv

Cited Authorities

Levy, Leonard W.,

Origins of the Bill of Rights (1999) ...........

Malcomson, Robert,

Lords of the Lakes: The Naval War on Lake

Ontario, 1812-1814 (1998) ...... 6... e eee

Maltby, Isaac,

A Treatise on Courts Martial and Military Law

PPT rer rerrrriTerTT rer Ty rT Ter

Meador, Daniel J.,

Habeas Corpus and Magna Carta: Dualism of

Power and Liberty (1966) .............-0445.

Nelson, William E.,

“The American Revolution and the Emergence of

Modern Doctrines of Federalism and Conflict of

Laws,” in Law in Colonial Massachusetts, 1630-

EEE ccudaceantucnnuedsséseaeeseunens

Neuman, Gerald L.,

“Habeas Corpus and the Suspension Clause after

INS v. St. Cyr,” 33 Colum. Hum. Rights L. Rev.

PEED £54 ¢bseddcnvocecnuandsneceuenees

Neuman, Gerald L.,

“Habeas Corpus, Executive Detention, and the

Removal of Aliens,” 98 Colum. L. Rev. 961

ES Serer rere Terre TTT Tt

Neuman, Gerald, L..,

“The Constitutional Requirement

of ‘Some Evidence,’”

25 San Diego L. Rev. 631 (1988) .............

Page

4, 16

Cited Authorities

Page

Oaks, Dallin H.,

“Legal History in the High Court—Habeas

Corpus,” 64 Mich. L. Rev. 451 (1966) ......... 6, 12

Oaks, Dallin H.,

“Habeas Co: pus in the States—1776-1875,”

32 U. Chi. L. Rev. 243 (1965) ......... 18, 19, 20, 27

Paschal, Francis,

“The Constitution and Habeas Corpus,” 1970

ST . 6b3ucadentiesendseneee 15, 17, 18, 20

Sharpe, R.J.,

The Law of Habeas Corpus (1976) ........ 4, 6, 8, 13

Sofaer, Abraham D.,

“Emergency Power and the Hero of New Orleans,”

2 Cardozo L. Rev. 233 (1981) ............005: 28

Story, Joseph,

Commentaries on the Constitution of the United

eid fod ubacouedensdcunes 18, 20

The Declaration of Independence (1776) ......... 17, 22

The Federalist

(Clinton Rossiter ed. 1961) ........... 16, 17, 20, 24

The Military Monitor, and American Register

CC ciecaugueusuesevbeseducuaneds 24

xvi

Cited Authorities

The Naval War of 1812: A Documentary History

(William S. Dudley ed. 1992) ................ 27, 28

The Records of the Federal Convention of 1787

(Max Farrand ed. 1966) .............-00 005. 18

Turley, Jonathan,

“Tribunals and Tribulations:

The Antithetical Elements of Military

Governance in a Madisonian Democracy,”

70 Geo. Wash. L. Rev. 649 (2002) ............ 23

Walker, Robert S.,

The Constitutional and Legal Development of

Habeas Corpus as the Writ of Liberty (1960) ... 5

Williams, Lou Falkner,

The Great South Carolina Ku Klux Klan Trials,

1871-3872 CIGOSD «cc ccviecseseeeeee 21

Winthrop, William,

Military Law and Precedents (2d ed. 1920) ..... 10, 23

Wuerth, Ingrid Brunk,

“The President’s Power to Detain ‘Enemy

Combatants’: Modern Lessons from Mr. Madison’s

Forgotten War,” 98 Nw. U.L. Rev. (forthcoming

\ Pees 27

Yackle, Larry W.,

Postconviction Remedies (1981) ............. 16

RULES

Sup. Ce. R. 14Ga) ... cccccccseccessceneueeenee 26

Sup. Ce. R. 37GB .. cc ccccvesscceccuueen ene l

, a e aad ? @ -

STATEMENT OF INTEREST'

This case raises the question whether the President can seize

a U.S. citizen in the United States and detain him indefinitely

by declaring him an “enemy combatant.” Amici curiae are

professors who teach criminal law or criminal procedure at law

schools in the United States and who have a particular interest

in habeas corpus law. The group of amici includes authors of

leading texts and articles on habeas corpus. Amici do not contend

that Founding-era history should be dispositive in the

interpretation of the Constitution’s Suspension Clause. The

professional interest of amici curiae is in ensuring that this Court

is completely and accurately informed about the precedents,

understanding, and evidence regarding the writ of habeas corpus

that, under this Court’s precedents, are appropriately considered

in examining the issues raised under the Suspension Clause and

statutory codification of the writ. In their writing and teaching,

amici curiae have frequently described the writ’s historic role

in safeguarding prisoners’ constitutional rights and its

importance as a post-conviction remedy. Amici curiae submit

the within brief because this case implicates a function of the

writ so basic that, at least until now, it has long been taken for

granied: to prevent indefinite detention without trial.

SUMMARY OF ARGUMENT

In May, 2002, Jose Padilla, a U.S. citizen, was arrested at a

Chicago airport pursuant to a material witness warrant; the

following month, he was designated an “enemy combatant” by

the President and transported to a naval brig in Charleston, South

Carolina, where he remains confined today. In his brief to this

Court, the Solicitor General maintains that the President, as

Commander-in-Chief in time of war, has the authority to seize

an individual, including a U.S. citizen, anywhere in the United

1. Pursuant to Rule 37.6, amici curiae certify that no counsel for a

party authored this brief in whole or in part and that no person or entity,

other than amici, or their counsel, made a monetary contribution to its

preparation or submission. Letters of consent by the parties to the filing

of this brief have been lodged with the Clerk of this Court.

States, designate him an “enemy combatant,” and confine him

indefinitely as a “simple war measure,”’ without trial or any

other meaningful opportunity to challenge the allegations against

him. The Solicitor General further maintains that such sweeping

executive detention power requires no specific authorization

from Congress’ and permits no “second-guess[ing]” by the

Judiciary.*

These assertions represent a marked departure from

centuries-old principles of individual liberty and the separation

of powers embodied in the writ of habeas corpus and the

Suspension Clause of the U.S. Constitution. In the United States,

habeas corpus has provided an effective remedy for those whom

“the government, through restraints, has separated from their

rights under the fundamental Law of the Land.”” Historically,

courts enforced the writ’s protections by guaranteeing prisoners

the right to contest the allegations against them at trial and

preventing confinement by executive fiat, even of suspected

enemies of state.

The writ’s protections applied even in time of war, and could

not be trumped by executive assertions of a “war power.” Indeed,

the safeguards of habeas corpus were forged amid foreign

invasions and internal strife in response to claims of an executive

prerogative to dispense with common law process. The Anglo-

American tradition permitted only two narrow exceptions:

suspension of the writ by the legislative body or the imposition

of martial law where the civil order had broken down and the

courts rendered incapable of dispensing justice. Neither applies

here. Instead, the Solicitor General concedes the writ is

“available,” but seeks to deprive it of all its historic force and

meaning.

2. Br. for the Pet’r at 29 (internal quotations and citation omitted).

3. Id. at 42.

4. Br. of Resp’t-Appellant to the U.S. Court of Appeals for the

Second Circuit at 47 (internal quotation marks and citation omitted).

5. Randy Hertz & James S. Liebman, | Federal Habeas Corpus

Practice and Procedure § 2.3, at 23 (4* ed. 2001).

1. In England, habeas corpus provided an effective remedy

against unlawful detention by guaranteeing the basic protections

of due process which date to the Magna Carta. By the time of

the celebrated Habeas Corpus Act of 1679, the writ provided

that those arrested in England for suspected wrongdoing, even

if designated a threat to national security by the king himself,

could not be imprisoned indefinitely but had to be charged and

tried at common law. Unless Parliament suspended the writ,

the protections of habeas corpus remained in place. At the same

time, Parliament placed the military under its firm control and

curtailed its jurisdiction, thus ensuring that the protections of

due process, secured by habeas corpus, would not be swallowed

up by broad assertions of military power by the executive.

2. The Framers, steeped in the writings of preeminent

common law jurists like Coke and Blackstone, understood the

writ’s central role in safeguarding individual liberty. They

foresaw the potential need for emergency detention, but, keenly

aware of its dangers, restricted it to the narrow circumstances

set forth in the Suspension Clause and gave Congress the

exclusive authority to suspend the writ. The protections of

habeas corpus were never subordinated to a president’s claim

of military power. Faced with real threats to their new republic’s

survival, including the War of 1812, the only foreign war ever

fought principally on U.S. soil, the Founding generation never

sacrificed the writ’s core protections or abandoned the rule of

law.

ARGUMENT

I. Indefinite Executive Detention Contravenes Long

Established Principles Of Habeas Corpus Law And The

English Legal Tradition

A. Habeas Corpus Prevented Indefinite Detention

Absent Suspension of the Writ by Parliament.

As this Court has repeatedly recognized, habeas corpus

historically provided a remedy against unlawful executive

detention, and “‘it is in this context that its protections have been

strongest.” Since the late 1500s, the writ has been used by

prisoners of state seeking discharge from executive

confinement.’ The king’s assertion of a prerogative to detain in

circumvention of due process was first squarely challenged

in Darnel’s Case,* a landmark decision’ that led to the

establishment of habeas corpus as the foremost protection

against indefinite executive detention. In the throes of a war

against France and Spain, King Charles I had detained numerous

individuals for refusing to contribute to his attempt to raise

revenue for the military campaign. No charges were filed, and

the individuals sought writs of habeas corpus claiming their

imprisonment was unlawful and demanding release on bail.

Without more specific charges, they argued, “imprisonment shall

not continue for a time, but for ever; and the subjects of this

kingdom may be restrained of their liberties perpetually”"® in

6. INS v. St. Cyr, 533 U.S. 289, 301 (2001); see also Brown v.

Allen, 344 U.S. 443, 533 (1953) (Jackson, J., concurring in the result)

(“The historic purpose of the writ has been to relieve detention by

executive authorities without judicial trial.”); Swain v. Pressley, 430 U.S.

372, 386 (1977) (Burger, C.J., concurring) (“[T]he traditional Great Writ

was largely a remedy against executive detention.”); cf Daniel J. Meador,

Habeas Corpus and Magna Carta: Dualism of Power and Liberty 38

(1966) (“Detention by executive authority . . . poses the oldest and

perhaps greatest threat to liberty under law.”).

7. Howel’s Case, 74 Eng. Rep. 66 (C.P. 1587) (discharging prisoner

for insufficient cause stated in return); Peter s Case, 74 Eng. Rep. 628

(C.P. 1586) (same); R.J. Sharpe, The Law of Habeas Corpus 7 (1976)

(by late 1500s, habeas corpus “shown to be a remedy fit to challenge

the authority of the crown”); see generally J.H. Baker, 6 The Oxford

History of the Laws of England 94 (2003) (writ provided “an effective

means of curbing arbitrary power” by crown officials).

8. 3 How. St. Tr. 1 (K.B. 1627).

9. Id. at 31 (Doderidge, J.) (case was “the greatest cause that |

ever knew in this court”); Meador, supra, at 13 (case directly raised

issue of executive’s prerogative to deprive an individual of his liberty

and thus “posed one of the great constitutional issues of all time”).

10. Darnel's Case, 3 How. St. Tr. at 8.

—_——

violation of the Magna Carta.'' The Attorney General responded

that it was the king’s prerogative to imprison by his “special

command” for “a matter of state . . . not ripe nor timely” for the

ordinary common law process of formal accusation and trial.'?

He emphasized the crown’s overriding interest in protecting “‘a

conspiracy-threatened commonwealth”"’ and insisted that

judges defer to the king’s judgment.'*

When the court denied relief, Parliament responded with

the Petition of Right, prohibiting imprisonment upon royal

command and without formal charges.'* The Petition made clear

that responsible government could not coexist with sweeping

executive claims to emergency powers of detention and arrest."

The king, however, continued to detain individuals without

specifying any charge for which they could be tried, thus

preventing them from testing the allegations against them."’

Parliament, in turn, enacted the Habeas Corpus Act of 1641,'*

which required courts to issue writs of habeas corpus on behalf

of prisoners “without delay.”'’ The act commanded custodians

to provide a legal basis for a prisoner’s detention and instructed

11. Magna Carta art. 39 (1215) (“No freeman shall be taken or

imprisoned . . . except by the lawful judgment of his peers or by the law

of the land.”).

12. Darnel’s Case, 3 How. St. Tr. at 37 (arguments of Attorney

General Robert Heath).

13. Robert S. Walker, The Constitutional and Legal Development

of Habeas Corpus as the Writ of Liberty 67 (1960).

14. Darnel'’s Case, 3 How. St. Tr. at 45.

15. 3 Car. 1, c. 1, §§ 5, 10 (1628).

16. William F. Duker, A Constitutional History of Habeas Corpus

141 (1980).

17. Six Members’ Case, 3 How. St. Tr. 235, 240 (K.B. 1629)

(imprisoning “for notable contempts . . . against our self and our

government, and for stirring up sedition against us”); Duker, supra, at

45 (Six Members’ Case shows “how easily the King could follow the

letter of the Petition while debasing its spirit entirely”).

18. 16 Car. 1, c. 10 (1641).

19. Id. § 6.

judges to act promptly by discharging, bailing, or remanding

the prisoner for trial.”” The act also abolished the infamous Court

of the Star Chamber, which had previously been a source of

“arbitrary power and government.””!

The most crucial blow against indefinite executive detention

came with the Habeas Corpus Act of 1679,” which made the

writ “the most effective weapon yet devised for the protection

of the liberty of the subject.””? The act remedied various

procedural flaws in the common law writ to ensure a prompt

judicial inquiry into the legality of confinement and prevented

detainees from languishing in prison without common law

process.** Even for those detained on the most serious

allegations, charges had to be “plainly and specially” stated in

the warrant of commitment,”> and the prisoner released if not

tried within a short period of time.** Blackstone praised the

1679 Act as a “second magna carta and stable bulwark of our

liberties?’ precisely because it categorically precluded evasion

of the most elementary principle of due process in the common

law tradition — continued confinement without opportunity to

20. /d.; Dallin H. Oaks, “Legal History in the High Court—Habeas

Corpus,” 64 Mich. L. Rev. 451, 460 (1966) (1641 act firmly established

habeas corpus as “effective remedy for executive detention not based

on common-law process”).

21. 16 Car. 1, c. 10, §§ 2-3.

22. 31 Car. 2, c. 2 (1679).

23. 9 William S. Holdsworth, A History of English Law 118 (1926).

24. E.g.,31 Car. 2,c. 2, § 3 (providing for issuance of writ during

“the [v]acation,” when common law courts were not in session);

id. §§ 11-12 (prohibiting jailors from moving prisoners to avoid writ);

id. §§ 2, 5 (penalizing jailors for not promptly producing prisoner and

basis for detention in court); see generally Sharpe, supra, at 18-19.

25. 31 Car. 2, c. 2., §§ 2,7

26. Id. § 7 (prisoner committed on charge of high treason or felony

must be indicted within one term or session after commitment or bailed,

and tried within two terms or sessions or discharged); see also Sharpe,

supra, at 133 (“From the seventeenth century to the present, judges have

considered this section to the very hub of the design of the [1679 act].”).

27. 1 William Blackstone, Commentaries *137.

contest the state’s allegations.”* Indefinite detention was

effectively abolished, even for supposed enemies of state.?? As

Edward Coke made clear, prolonged detention without “full and

speedy justice” was contrary to the basic laws and customs of

England.*° Thus, even a body of foreign anarchists, suspected

of a plot to blow up the Houses of Parliament, would be entitled

to release on habeas unless promptly charged and tried.*!

After the passage of the 1679 act, temporary suspension of

the writ by Parliament became the only lawful means to

indefinitely detain an individual in England suspected of

wrongdoing.*’ Parliament passed the first suspension acts amid

armed conflict abroad and fears of exiled King James II’s

attempts to regain the throne after the Glorious Revolution of

1688.*? Other suspension acts followed during the next century

to preserve the safety of the realm in time of danger and war by

authorizing the detention of suspected enemies of state without

common law process.** These acts increased the period of time

28. E.g., Rollin C. Hurd, A Treatise on the Right of Personal Liberty,

and on the Writ of Habeas Corpus 266 (2d ed. 1876) (“It was the hateful

oppressiveness of long and close confinement, and not the dread of a

trial by his peers, which made the suffering prisoner of state exclaim:

‘The writ of habeas corpus is the water of life to revive from the death

of imprisonment.’”) (emphases omitted).

29. E.g., Crosby's Case, 88 Eng. Rep. 1167, 1168 (K.B. 1694)

(Holt, C.J.) (“The design of the [1679] Act was to prevent a man’s lying

[indefinitely] under an accusation for treason.”).

30. Edward Coke, The Second Part of the Institutes of the Laws of

England 43 (1817 ed.).

31. Albert V. Dicey, Introduction to the Study of the Law of the

Constitution 222-23 (1908).

32. E.g., 1 William Blackstone, Commentaries *136.

33. 7 & 8 Will. 3, c. 11 (1698) (suspension to “secur[e] the Peace

of the Kingdom in this Time of imminent Danger, against all Attempts

and traitorous Conspiracies of evil disposed Persons”); 1 Will. & Mary,

c. 7 (1688).

34. E.g., 38 Geo. 3, c. 36 (1798) (suspension to protect king and

“secur(e] the Peace and Laws and Liberties of this Kingdom,” where

(Cont'd)

such individuals could be confined, in effect suspending not

habeas corpus itself but rather the principal right secured by the

writ — to test the allegations at trial or be released.** Suspension

acts all contained an express expiration date,”* usually a year or

less from the act’s passage.*’ Those not specifically within a

suspension act continued to enjoy the benefits of due process

secured by the writ and the 1679 statute.** And, even when

Parliament had suspended the writ, a detainee could still apply

for habeas corpus to determine whether he had been committed

on a sufficient warrant.*® If so, the petition would be denied

and the prisoner remanded to custody since the judicial process

ordinarily secured by the writ had been suspended for such

persons.*° Thus, suspension gave “[e]xtreme powers . . . to the

executive, but powers nonetheless distinctly limited by law.””*’

In short, the writ’s history in England demonstrates the

increasingly well established relationship between habeas corpus

(Cont'd)

“his Majesty’s Enemies are making Preparations with considerable and

increasing Activity for the Invasion of his Majesty’s Dominions”);

19 Geo. 2, c. 1 (1746) (suspension to secure peace and security of

kingdom from threatened rebellion in Scotland, aided by enemies

abroad); 17 Geo. 2, c. 6 (1744) (suspension to protect against danger of

foreign invasion by those acting “in concert with disaffected persons in

England”); see generally William Forsyth, Cases and Opinions on

Constitutional Law 452 (1869) (citing suspension acts).

35. Sharpe, supra at 92; Duker, supra, at 142.

36. Sharpe, supra, at 92 n.1.

37. Id. at 92; Dicey, supra, at 226; see also 38 Geo. 3, c. 36, § 1

(1798) (nine-month suspension).

38. Sharpe, supra, at 92.

39. Duker, supra, at 142 & n.120; see also R. v. Earl of Orrery,

88 Eng. Rep. 75, 77 (K.B. 1722) (acknowledgment by king’s counsel

that courts may still inquire whether prisoner falls within suspension

act).

40. R. v. Despard, 101 Eng. Rep. 1226, 1227 (K.B. 1798) (denying

government’s motion to quash writ based on assertion that detention

fell within suspension act); Duker, supra, at 142.

41. Sharpe, supra, at 92.

9 -

and the executive’s emergency detention power. Absent

suspension of the writ by Parliament, the core principles of the

English common law remained in force, even for those believed

by the king to pose a danger to the State.

B. The Supremacy of the Civilian Authority over the

Military Ensured the Protections of Habeas Corpus

In England, the safeguards of habeas corpus could not be

subordinated to military power based on executive fiat. Even during

war, as long as the courts were open and capable of dispensing

justice, suspension of the writ by Parliament remained the

only lawful way to confine someone in England suspected of

wrongdoing without the established protections of due process.

With the Petition of Right of 1628, Parliament subjected

the military to its control and curtailed its jurisdiction.

The Petition denounced Charles I’s expansive use of military

commissions during periods of strife, which had led to the

execution of both soldiers and civilians for crimes under a system

of justice unknown to the common law.* It declared these

commissions unlawful, and asserted that the king must instead

proceed against alleged offenses and threats to the realm “by

the laws and statutes of the land.” Like the king’s detention

of prisoners without charges in Darnel’s Case,* his use of

military commissions in England violated the Magna Carta’s

guarantee that no one would be punished or otherwise deprived

of his liberty without due process. In 1689, the Bill of Rights

42. Charles M. Clode, The Administration of Justice under Military

and Martial Law 21 (1872) (such use of martial law “was a direct

violation of the fundamental Laws of the Land” ); see also Charles

Fairman, The Law of Martial Rule 9 (1930) (king’s use of martial law

“precipitated a constitutional crisis”).

43. 3 Car. 1, c.1, §§ 7-10 (1628).

44. Id. § 8.

45. 3 How. St. Tr. 1 (1627).

46. 1 Will. & Mary, c. 2 (1689) (prohibiting king, without consent

of Parliament, from keeping standing army within kingdom in time of

peace and from “suspending the laws or the execution of laws by regal

authority”).

and Mutiny Act*’ both further limited royal power and enshrined

these principles in English law.

In the eyes of England’s leading jurists, military law (or

martial law, as it was sometimes also known) was something

“built upon no settled principles,” “entirely arbitrary in its

decisions,” and “‘in truth and reality no law” at all.** In England,

military jurisdiction was restricted to offenses by soldiers” and

justified as a means to maintain discipline within the ranks.*°

The use of military law in England was otherwise forbidden in

time of peace, and, even in time of war, except when the common

law courts were closed and one could not receive justice

“according to the Laws of the Land.”*' Those who owed a duty

47. 1 Will. & Mary, c. 5, preamble (1689) (“[N]o Man may be

forejudged of Life or Limb or subjected to any kind of punishment by

Martial Law, or in any other Manner than by the Judgment of his Peers

and according to the known and Established Laws of this Realm.”),

reprinted in William Winthrop, Military Law and Precedents 929

(2d ed. 1920); see also Robert D. Duke & Howard S. Vogel, “The

Constitution and the Standing Army: Another Probiem of Court-Martial

Jurisdiction,” 13 Vanderbilt L. Rev. 435, 444 (1960) (Mutiny Act provided

“ringing declaration of the supremacy of civil procedures over military

law”).

48. 1 William Blackstone, Commentaries *413; see also Matthew

Hale, The History of the Common Law of England 26 (1755) (Charles

M. Gray ed. 1971) (martial law “something indulged rather than allowed

as a Law”).

49. E.g., Mutiny Act, 1 Will. & Mary, c. 5, preamble (1689)

(providing for court-martial of soldiers who commit mutiny, sedition,

or desertion); see also Duke & Vogel, supra, at 445 (“[T}he British

articles of war in effect at the outbreak of the American Revolution

reflect the plain purpose to confine the scope of courts-martial jurisdiction

to the trial and punishment of military offenses, and in other respects to

give precedence to the civil authorities.”).

50. E.g., 1 William Blackstone, Commentaries *413 (military law

for “due regulation and discipline of the soldiery”).

51. Hale, supra, at 27; see also 1 William Blackstone,

Commentaries *414; 1 William S. Holdsworth, A History of English

Law 339 (1903) (“It was . . . clearly settled that it was not a time of war

(Cont’d)

of allegiance and were suspected of acts endangering the king

or safety of the realm were traditionally prosecuted for treason,”

an offense that had encompassed the commission of war-like

acts by enemies of state since the fourteenth century.”

With these principles firmly established, the king was

stripped of the authority to suspend the established laws of the

realm at will, and the guarantee of due process, secured by habeas

corpus, became firmly established as the cornerstone of the

Anglo-American legal tradition.

(Cont'd)

unless the king’s courts were shut up, or unless the sheriff could not

execute the king’s writ.”); Fairman, supra at 17 (“* When the Courts are

open, Martial-Law cannot be Executed.’”) (quoting Edward Coke)

(citation omitted); cf Wolfe Tone’s Case, 27 How. St. Tr. 614, 625-26

(Irish K.B. 1798) (issuing writ and suspending execution of death

sentence over military’s objection when father, as “next friend,” claimed

Tone was never member of armed forces and thus not subject to court-

martial); Dicey, supra, at 289 (Tone’s case demonstrates judges’ resolve

to “maintain{]} the rule of regular law, even at periods of revolutionary

violence”’). ;

52. E.g., Downie'’s Case, 24 How. St. Tr. 1 (1794) (treason

conviction for procuring weapons and for conspiring to seize castle of

Edinburgh and attack king’s forces); Layer s Case, 16 How. St. Tr. 93

(K.B. 1722) (treason conviction for plotting to take up arms against

king); Vaughan’s Case, 13 How. St. Tr. 485 (K.B. 1696) (treason

conviction for cruising on French ship with intent to take English ships);

Parkyns’ Case, 13 How. St. Tr. 63 (K.B. 1696) (treason conviction for

caching arms and obtaining horses for attempt to assassinate King

William and wage war to restore exiled King James II to power);

Harding's Case, 86 Eng. Rep. 461 (K.B. 1690) (treason conviction for

hiring men to assist French in waging war against king and queen).

53. Statute of Treasons, 25 Edw. 3, c. 2 (1350) (treason to “levy

war against .. . the King in his realm, or be adherent to the enemies

[of the King] in the realm, giving to them aid and support in his realm or

elsewhere”), quoted in Willard Hurst, “Treason in the United States,”

58 Harv. L. Rev. 226, 226 n.1 (1944).

C. Habeas Corpus Ensured Meaningful Review for

Individuals in Military Custody

For those detained by the executive in England on suspicion

of wrongdoing, habeas corpus ensured the right to test the

state’s allegations at trial.** For those confined in “‘noncriminal”

matters, and thus outside the safeguards of the 1679 act,** the

habeas proceeding itself provided the only “effectual remedy”

against unlawful restraint.** In such instances, judicial review

was broader,’ and individuals could contest the factual basis

for their confinement at common law,* a right secured by statute

in 1816.°

Military detention was no exception. In those circumstances

where the military could properly exercise authority, the writ

remained available when it exceeded those limits and thus

afforded a remedy to “any one placed under Military arrest which

54. E.g., Hurd, supra, at 266.

55. 31 Car. 2, c. 2, § 2 (act applied only to those detained for

“criminal or supposed criminal matters”).

56. Hurd, supra, at 271; see also 6 Encyclopedia of the Laws of

England 132 (A. Wood Renton ed. 1898) (those not included within

1679 act still protected by common law writ).

57. Cf. Bushell’s Case, 124 Eng. Rep. 1006, 1010 (C.P. 1670)

(Vaughan, C.J.) (return to habeas corpus insufficient because it lacked

“full” and “manifest” evidence necessary to sustain commitment for

contempt, as prisoners would never have opportunity to contest

allegations at trial, in contrast to commitment for felony).

58. E.g., R. v. Turlington, 97 Eng. Rep. 741 (K.B. 1761)

(commitment for insanity); R. v. Lee, 83 Eng. Rep. 482 (K.B. 1676)

(imprisonment of wife by husband); Oaks, “Legal History in the High

Court,” supra, at 454 n.20 (instances in which individuals could

contradict facts in return too numerous to specify); see also Jonathan L.

Hafetz, Note, “The Untold Story of Noncriminal Habeas Corpus and

the 1996 Immigration Acts,” 107 Yale L.J. 2509, 2535 (1998) (common

law judges’ responses to questions of House of Lords on proposed 1758

bill to provide for review of facts in cases outside 1679 act show nearly

all those judges either rejected they were bound by facts in return or

believed such facts could be contested as practical matter).

59. 56 Geo. 3, c. 100. §§ 3-4 (1816).

he deems to be unlawful,” even during wartime. The crown’s

assertion that an individual’s detention was a military matter

did not itself provide a sufficient justification.

First, even those seized and detained by the military as

alleged prisoners of war could seek review on habeas of the

jurisdictional facts underlying their “enemy” status.*' Although

courts would not discharge those ultimately found to be prisoners

of war, they still could examine whether such persons were

“improperly detained,” either as a matter of fact or law, and

grant relief accordingly.”

British soldiers confined without process likewise sought

review on habeas. In Wades Case,” the court considered a

habeas petition filed on behalf of a sergeant claiming his

continued detention for alleged desertion violated a provision

of the articles of war requiring trial by court-martial “within

eight days, or as soon after as a court martial can be held.”

Lord Mansfield commanded the military to show cause for

Wade’s detention, and the prisoner was subsequently tried for

60. Clode, supra, at 98; see also Paul M. Bator, “Finality in

Criminal Law and Federal Habeas Corpus for State Prisoners,” 76 Harv.

L. Rev. 441, 475 (1963) (“the classical function of habeas corpus was to

assure the liberty of subjects against detention by the executive or the

military without any court process at all”) (emphasis added).

61. Three Spanish Sailors 'Case, 96 Eng. Rep. 775, 776 (C.P. 1779)

(prisoners not entitled to discharge because, based “upon their own

showing,” they are prisoners of war); R. v. Schiever, 97 Eng. Rep. 551,

552 (K.B. 1759) (denying relief on merits after reviewing petition to

confirm petitioner’s prisoner of war status).

62. Sharpe, supra, at 113; see generally William S. Church, A

Treatise on the Writ of Habeas Corpus § 222, at 311 (2d ed. 1893)

(“The question of jurisdiction . . . is always open and may be inquired

into upon proceedings by habeas corpus.”).

63. This case, decided by the King’s Bench on January 28, 1784,

is reported in Blake s Case, 105 Eng. Rep. 440, 441 n.(a)' (K.B. 1814).

64. Id.

his alleged offense.°* Construing the same provision again in

Blake's Case, the court refused to dismiss the habeas petition

based on the military’s mere assertion that a court-martial could

not conveniently be assembled because relevant witnesses were

unavailable and because Blake’s regiment was still engaged in

foreign service.*’ The court ultimately denied relief, but only

after affording Blake an opportunity to contest the military’s

claims® and determining that the delay was “satisfactorily

explained.”

Habeas also provided a remedy for the unlawful

impressment — or forcible seizure for naval service — of sailors

during war, a practice that closely concerned assertions of

executive prerogative.” In Goldswain’s Case,” for example,

the court entertained a habeas petition brought on behalf of an

impressed sailor. Despite the official’s assertion “of urgent

necessity” in time of war, the judges refused to “shut their eyes”

to the facts asserted by the applicant, which suggested that the

admiralty lacked lawful authority over the impressed sailor,”

and ordered his release.” Similarly, in R. v. White,” the court

granted relief to an impressed seaman who had “no other

65. Id. Although the reported version of the case does not describe

the proceedings on the return, it suggests the writ’s role im ensuring

military officials remained within prescribed bounds when applying

military law. Jd.

66. 105 Eng. Rep. 440 (K.B. 1814).

67. Id. at 441.

68. Id. at 442 (Ellenborough, C.J.) (prisoner failed to show

“something . . . to the contrary” of what military had asserted as basis

for his continued detention without trial).

69. Id. at 441.

70. Dicey, supra, at 219.

71. 96 Eng. Rep. 711 (C.P. 1778).

72. Id. at 712.

73. Id. at 713 (impressed sailor initially released on own

recognizance and subsequently discharged with consent of board of

admiralty).

74. 20 How. St. Tr. 1376 (K.B. 1746).

reviewing the factual assertions on

military lacked authority over — oo

| In sum, habeas corpus traditionally ensured that individuals

in England could not be confined on mere executive Say-so.

The crown’s assertions of military power did not abridge this

principle, and the writ provided an important remedy to those

unlawfully in military custody even during wartime.

Il. The Founding Generation Ensured The Writ’s

Protections Against Indefinite Detention Through The

— Clause And The Supremacy Of Civilian

A. In Colonial America and under the United States

Constitution, Habeas Corpus Provided the Ultimate

Safeguard against Indefinite Detention.

The writ’s history in colonial America and during the

Founding era demonstrates that habeas corpus was understood

as providing the same elementary check against unlawful

executive detention as it had in England. Since the early colonial

panes, the writ has held a uniquely elevated place in American

law. Deeply influenced by the writings of eminent English

jurists like Coke and Blackstone, the colonists viewed habeas

corpus as the preeminent safeguard of due process, the

75. Id. at 1377; see generally Hurd, supra, at 268 (in such cases

where habeas proceeding was “first judicial hearing .. . upon the

questions involved,” there was “if not a clear necessity .. . at least a

peculiar fitness in admitting evidence or all the facts important to be

nor : enable the court to determine whether the imprisonment was

76. E.g., Francis Paschal, “The Constitution and Habeas 4

1970 Duke LJ. 605, 608 (“abundant evidence of an early and re ed

attachment to habeas corpus in colonial America); Milton Cantor

“The Wnt of Habeas Corpus: Early American Origins and Development,”

in Freedom and Reform: Essays in Honor of Henry Steele Commager

55, 74 (H. Hyman & L. Levy eds. 1967) (“Habeas corpus was the only

rennet oo med written into the Constitution, which is

measure of its reception

regard in which it was held.”). a

fundamental guarantee of English law derived from the Magna

Carta.”’” The common law writ operated in all thirteen British

colonies that rebelled in 1776,” and in practice judges often

employed the remedial protections of the 1679 Habeas Corpus

Act “as a matter of course.”

At the same time, however, the failure to extend the 1679

act uniformly throughout the colonies led to abuses by royal

officials, especially where their authority was directly

challenged.*® As Alexander Hamilton made clear, it was

precisely the act’s protection against the supreme example of

arbitrary government — imprisonment without formal

accusation and trial*! — that had made the writ “‘the bulwark

77. Meador, supra, at 24; see also Larry W. Yackle, Postconviction

Remedies § 4, at 7 (1981) (writ became “inextricably bound up with the

Great Charter”).

78. Duker, supra, at 115; A.H. Carpenter, “Habeas Corpus in the

Colonies,” 8 Am. Hist. Rev. 18, 21, 26 (1902).

79. Zechariah Chafee, Jr., “The Most Important Right in the

Constitution,” 32 B.U.L. Rev. 143, 146 (1952).

80. E.g., Alan Clarke, “Habeas Corpus: The Historical Debate,”

14.N.YL. Sch. J. Hum. Rts. 375, 393 (1998) (absent protections of 1679

act, colonists remained subject to “arbitrary detention” by royal governors

and other executive officials); Duker, supra, at 101-03 (abuses by crown

officials in Massachusetts). The colonists addressed these deficiencies

after declaring independence from England. £.g., Mass. Const. pt. 2, c.

6, art. VII (1780) (“The privilege and benefit of the writ of habeas corpus

shall be enjoyed in this commonwealth, in the most free, easy, cheap,

expeditious, and ample manner; and shall be not be suspended by the

legislature, except upon the most urgent and pressing occasions, and for

a limited time not exceeding twelve months.”); Duker, supra, at 111

(New York’s enactment in 1789 of habeas corpus statute modeled on

1679 act ensured effective protections lacking under common law writ).

81. The Federalist 84, at 512 (Alexander Hamilton) (Clinton Rossiter

ed. 1961) (“*To bereave a man of life ... or by violence to confiscate

his estate, without accusation or trial, would be so gross and notorious

an act of despotism as must at once convey the alarm of tyranny throughout

the whole nation; but confinement of the person, by secretly hurrying

hum to jail, where his sufferings are unknown or forgotten, is a less public,

a less striking, and therefore a more dangerous engine of arbitrary

government.’”) (quoting | William Blackstone, Commentaries *136).

of the British Constitution.” The king’s abuse of his detention

power was one of the grievances listed in the Declaration of

Independence,*’ and reinforced the Founding generation’s

determination to ensure that the writ provide a secure guarantee

of due process and the rule of law in their own new republic.™

Indeed, the grant of habeas jurisdiction in the First Judiciary

Act of 1789" pre-dated the Bill of Rights, and the answer made

to the claim that the Constitution lacked a bill of rights was that

the clauses guaranteeing habeas corpus and jury trial served

that essential purpose because of their ever-present power to

protect all other rights.*°

Thus, the only debate over the habeas corpus clause at the

Federal Convention of 1787 centered on whether there should

be any authority to suspend the writ at all and, if so, how narrow

that suspension power should be.*’ The proposals reflected the

Framers’ concerns about the writ’s frequent suspension in

82. Jd. (quoting 4 William Blackstone, Commentaries *438).

83. The Declaration of Independence para. 20 (1776) (frequent

deprivation of benefits of trial by jury).

84. Akhil Reed Amar, “Sixth Amendment First Principles,”

84 Geo. L.J. 641, 663 (1996) (“[The 1679 act] stood alongside Magna

Charta and the English Bill of Rights of 1689 as a towering common

law lighthouse of liberty — a beacon by which framing lawyers in

America consciously steered their course.”).

85. Judiciary Act of 1789, ch. 20, § 14, 1 Stat. 73, 82 (granting

federal courts power to issue writs on behalf of prisoners “in custody,

under or by colour of the authority of the United States”). The present

version of the habeas corpus provision of the 1789 act is codified at

28 U.S.C. § 2241 (a).

86. E.g., The Federalist 83, at 499 (Alexander Hamilton) (Clinton

Rossiter ed. 1961).

87. Paschal, supra, at 608 (“[I)}n the Philadelphia Convention and

in the struggle for ratification, there was never the slightest objection to

according a special preeminence to the Great Writ.”); see also Gerald L.

Neuman, “Habeas Corpus and the Suspension Clause after INS v. St.

Cyr,” 33 Colum. Hum. Rights L. Rev. 555, 566 (2002) (“The records

make clear that restricting Congress's power to suspend was not

controversial. . . .”).

England, where there was no express limitation on Parliament’s

power to suspend habeas corpus. An early proposal stated that

the writ shall not be suspended except “on the most urgent

occasions, and then only for a limited time not exceeding twelve

months.”*® This language was ultimately rejected in favor of

the stricter restriction contained in the Suspension Clause, which

forbids suspension outside of two circumstances — “Rebellion

or Invasion” — both of which necessarily involve armed conflict

and armed enemies within the United States.*° Adopted with

little debate,”' the Suspension Clause represents the sole express

88. Joseph Story, Commentaries on the Constitution of the United

States § 1342, at 214 (5* ed. 1891) (“[I)t has frequently happened in

foreign countries, and even in England, that the writ has upon various

pretexts and occasions been suspended, whereby persons apprehended

upon suspicion have suffered a long imprisonment, sometimes from

design . . . .”); see also Leonard W. Levy, Origins of the Bill of Rights 66

(1999) (noting Thomas Jefferson's warning that suspension power had

been abused in England and invoked for both “real and sham” plots).

89. 2 The Records of the Federal Convention of 1787, at 438 (Max

Farrand ed. 1966) (proposal of Charles Pinckney); see also id. (proposal

to declare writ of habeas corpus “inviolable”) (proposal of John

Rutledge).

90. Art. 1, § 9, cl. 2 (“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.”), see also Paschal, supra, at 611

(purpose of Suspension Clause to establish “the strongest guarantee

consistent with a power of self-preservation”). State constitutions

provided similar guarantees. Dallin H. Oaks “Habeas Corpus in the

States—1776-1875,” 32 U. Chi. L. Rev. 243, 249 (1965) (“All twenty-

one of the new states admitted after 1787 and prior to 1860 [except

Vermont] wrote into their constitutions a habeas corpus provision

practically (and in most cases exactly) identical to the federal

provision.”).

91. The only three colonies that voted against the provision did

so because they believed no authority should be given to suspend the

writ under any circumstances. Oaks, “Habeas Corpus in the States,”

supra, at 248.

grant of emergency detention power in the Constitution.”

It provides the linchpin of the guarantees against unlawful

government restraints contained in the Bill of Rights,” and has

appropriately been called “the most important h ight i

the Constitution.”™ ees

The power to suspend habeas corpus required

authorization from Congress. This was the English merle para

which the Framers were familiar; nor, given the climate of fear

of executive power in the late 1780s, would they have given the

president more power than the king.” Indeed, the king did not

suspend the writ without Parliament’s approval even during the

Revolutionary War, when he sought to detain those suspected

of offenses against the crown.” The post-1776 practice of the

American states was no different,” including the last pre-

92. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 650

—— ee - concurring) (Suspension Clause constitutes only

xpress provision for exercise of extraordinary

crisis” in Constitution). eetiadinacnacane

93. US. Const. amend. VI (night to “speedy and public trial,” to be

confronted with adverse witnesses and to compel production of favorable

ones, and to “the assistance of counsel”), id. amend. V (right to privilege

against self-incnmunation, to due process, and to presentment or indictment

by grand jury for a “capital, or otherwise infamous crime” except in

“cases arising in the land or naval forces, or in the militia, when

in actual service in time of war or public danger”) (emphases added):

see also id. amend. IV (no “unreasonable searches and seizures” or

warrants except based on “probable cause”). The right to a speedy trial, for

Cr 3080 has “roots atthe very foundation of our English law heritage.”

lopfer v North Carolina, 386 U.S. 213, 223 (1967) (tracing guarantee not

to deny or defer to any man either justice or right” to the Magna Carta)

94. Chafee, supra, at 143. |

95. “Developments in the Law—Federal Habeas Corpus,”

Harv. L. Rev. 1038, 1264 (1970). =

96. 17 Geo. 3, c. 9 (1777) (suspendin

| , g writ for those charged

with or suspected of committing high treason in American colonies or

on high seas, or crime of piracy).

97. Oaks, “Habeas Corpus in the States,”

aks, , at 251 (“[I

of at least six recorded instances where the Dn som moms. —

(Cont'd)

ratification instance of suspension, a 1786 Massachusetts

act passed during Shays’ Rebellion to preserve public safety

against a “violent” insurrection “by armed bodies of men.””*

The principle of exclusive legislative suspension power was

endorsed by the Supreme Court,” early commentators,'®” and,

implicitly, President Jefferson himself, who sought (and was

denied) Congressional authorization to suspend the wnit in the

face of Aaron Burr’s conspiracy to wage war against the United

States.'°' This principle embodies the Framers’ fear of

unchecked executive power and their belief that the “separate

and distinct exercise of the different powers of government. . .

was essential to the preservation of liberty.”'” Subsequent

history confirms that Congress alone can authorize the

suspension of habeas corpus,'®? and demonstrates that the writ’s

(Cont'd)

or before the War for Independence, this power was exercised by the

legislature and not by the executive.”).

98. Act of Nov. 10, 1786, ch. 10, 1786 Mass. Acts & Laws 510.

The act expired by its own terms the following year. Jd.

99. Ex parte Bollman, 8 U.S. (4 Cranch) 75, 101 (1807) (Marshall,

C.J.) (“If at any time the public safety should require the suspension of

the powers vested by this act in the courts of the United States, it is for

the legislature to say 30.”).

100. Story, supra, § 1342, at 214-15.

101. “Developments in the Law—Federal Habeas Corpus,”

supra, at 1265; Paschal, supra, at 623. A suspension bill was passed by

the Senate, but rejected by the House. Paschal, supra, at 623-24. It would

have suspended the wri: for persons “charged on oath with treason,

misprision of treason, or other high crime and misdemeanor, endangering

the peace, safety, or neutrality of the United States.” 16 Annals of

Congress 402 (1807), quoted in Duker, supra, at 136.

102. The Federalist 51, at 321 (James Madison) (Clinton Rossiter

ed. 1961).

103. Act of Apr. 20, 1871, ch. 22, § 4, 17 Stat. 14, 14-15

(authorizing suspension during Reconstruction to combat “armed” and

“organized” “unlawful combinations” that directly threatened

government); Act of July 1, 1902, ch. 1369, § 5, 32 Stat. 691, 692

(Cont'd)

temporary suspension provides the proper means of detaining

members of armed and organized groups that pose a danger to

the state without the “usual procedures of due process.”'™

The Framers thus followed English practice by establishing

habeas corpus as the ultimate safeguard against executive

detention without due process. Congress was given exclusive

authority to suspend the writ, and that power was expressly

constricted by the text of the Suspension Clause itself.

(Cont'd)

(authorizing suspension in Philippines); Hawaiian Organic Act, ch. 339,

§ 67, 31 Stat. 153 (1900) (authorizing later suspension of writ in Hawaii

during World War II). President Lincoln’s suspension of the writ during

the Civil War was deemed unconstitutional. Ex parte Merryman, 17

F. Cas. 144, 148-49 (C.C.D. Md. 1861), and Congress later approved

the suspension, underscoring the necessity of legislative authorization.

Act of Mar. 3 1863, ch. 81, § 1, 12 Stat. 755. Moreover, Lincoln’s

executive suspension in places like Maryland, considered a site of

insurrection, may be characterized as an “emergency military measure.”

E.g., Daniel Farber, Lincoln s Constitution 163 (2003). The broader use

of martial law was rejected in Ex parte Milligan, 71 U.S. (4 Wall.) 2

(1866), which reaffirmed the common law rule precluding its application

where “the courts are open, and in the proper and unobstructed

exercise of their jurisdiction.” /d. at 127. This Court’s narrow holding

in Ex parte Quirin, 317 U.S. 1 (1942), did not displace the core principles

of the Anglo-American tradition embodied by Milligan. See Brief Amicus

Curiae of the ACLU.

104. Lou Falkner Williams, The Great South Carolina Ku Klux

Klan Trials, 1871-1872, at 46 (1996) (temporary suspension pursuant

to 1871 act by President Grant in nine South Carolina counties in state

of rebellion allowed officials “to make mass arrests quickly” and detain

without formal charges); see also Fisher v. Baker, 203 U.S. 174, 179-80

(1906) (suspension pursuant to 1902 act in two provinces of Philippines

to combat “organized” gangs whose violent acts had created “a state of

insecurity and terrorism among the people which makes it impossible in

the ordinary way to conduct [criminal investigations]”) (internal

quotation marks and citation omitted).

B. As in England, the Protections Secured by Habeas

Corpus Were Not Subordinated to Military Power

Military abuses by the crown helped drive colonial leaders

to seek independence from England,'®’ and caused them to limit

military power under their own Constitution. The Framers

certainly recognized the importance of the executive’s role as

commander-in-chief under Article II, but refused to let those

powers swallow up the protections against unlawful detention

guaranteed by the Suspension Clause. Indeed, the Founding

generation adhered to these principles despite a weak central

government vulnerable to continued threats from more powerful

European nations and hostile Indian tribes, the only foreign war

fought principally on U.S. soil, and violent insurrections or

conspiracies to destroy the United States during the first four

presidencies.'*°

The Constitution grounded the executive’s military power

in approval by Congress.'®’ The first Congress passed legislation

105. The Declaration of Independence para. 14 (1776) (rendering

military “independent of and superior to the Civil power”); id. para. 16

(“[q]uartering large body of armed troops among us”).

106. President Washington confronted armed insurrection during

the Whiskey Rebellion in Pennsylvania; President Adams also faced

violent revolt in that state; President Jefferson encountered Aaron Burr’s

conspiracy to sever the western United States from the rest of the nation,

and President Madison contended with plans of New England

secessionists to break away from the Union during the War of 1812.

David B. Kopel & Joseph Olson, “Preventing a Reign of Terror: Civil

Liberties Implications of Terrorism Legislation,” 21 Okla. City U. L.

Rev. 247, 345 (1996).

107. U.S. Const. art. I, § 8, cl. 14 (authorizing Congress

“(tlo make Rules for the Government and Regulation of the land and

naval Forces”); id. art. I, § 8, cl. 15 (authorizing Congress “([t]o provide

for calling forth the militia to execute the Laws of the Union, suppress

Insurrections and repel Invasions”); id. art. I, § 8, cl. 16 (authorizing

Congress “[{t]o provide for organizing, arming, and disciplining, the

Militia, and for governing such Part of them as may be employed in the

Service of the United States”).

placing military troops under congressional authority;'®

Congress amended this legi_lation in 1806 to establish articles

of war to govern the country’s military forces.'°? The 1806

statute carefully limited military jurisdiction, even in time of

war, to those who were not citizens or did not otherwise owe

allegiance to the United States, and who were apprehended

spying in or near U.S. army fortifications or encampments,''”

thus codifying the unique wartime treatment of spies.'''

President James Madison, himself one of the key drafters of the

habeas provision in the Constitution, and of the Bill of Rights,

recognized the importance of the supremacy of civilian authority

108. Act of Sept. 29, 1789, ch. 25, § 4, 1 Stat. 95, 96 (“[Military]

troops shall be governed by the rules and articles of war which have

been established by the United States in Congress assembled, or by such

rules and articles of war, as may hereafte: by law be established.”).

109. American Articles of War of 1806, enacted April 10, 1806,

reprinted in Winthrop, supra, at 976.

110. /d. art. 101(2), reprinted in Winthrop, supra, at 985. Congress

lifted the limitation during the Civil War so that confederate soldiers

and sympathizers could be tried. Winthrop, supra, at 766. Contemporary

commentators construed other provisions of the 1806 Articles of War

narrowly to exclude civilians and thus avoid the “military despotism”

that comes with the subordination of civilian authority to military power.

E.g. Isaac Maltby, A Treatise on Courts Martial and Military Law 37-40

(1815).

111. Jonathan Turley, “Tribunals and Tribulations: The Antithetical

Elements of Military Governance in a Madisonian Democracy,” 70 Geo.

Wash. L. Rev. 649, 724 (2002); see also Winthrop, supra, at 769 (“Under

the law of nations and of war, [a spy’s] offense is an exclusively military

one, cognizable only by military tribunals.”); id. at 771 (special treatment

of spies based not on “any peculiar depravity attaching to the act”

but on particular logic of rules of warfare). The special treatment of

spies was recognized by statute in 1776, Winthrop, supra, at 765 (citing

Resolution of the Continental Congress of Aug. 21, 1776), and explains

the fate of British spy John Andre, captured behind enemy lines in civilian

clothes and executed after a proceeding before a board of inquiry. Turley,

supra, at 720-24. Notably, Joshua Hett Smith, the civilian charged

with Andre, was given a civilian trial for his involvement in espionage.

Id. at 724.

even while serving as commander-in-chief during the War of

1812. When a court-martial found Elijah Clark guilty of spying

in August of 1812 and ordered his execution, Madison

intervened on the ground that the military lacked the power to

try him as a spy, directing that Clark be released unless “arraigned

by the civil courts for treason” or some other criminal offense.''”

Throughout the Founding era, offenses by supposed

enemies of state were prosecuted criminally for treason.''’

Indeed, the very definition of this offence in Article III of

the Constitution contemplates the exercise of federal

court jurisdiction over war-like acts against United States!"

by those who owe a duty of allegiance.''’* In Ex parte

112. “Case of Clark the Spy,” 1 The Military Monitor, and

American Register 121-22 (Feb. 1, 1813) (emphasis omitted).

113. E.g., Case of Fries, 9 F. Cas. 924, 924, 932 (C.C.D. Pa. 1800)

(conviction for assembling with a “great number” of persons “armed

and arrayed in a warlike manner. . . to oppose and prevent, by means of

intimid.iion and violence, the execution of [the laws of the United

States]”); United States v. Vigol, 28 F. Cas. 376 (C.C.D. Pa. 1795)

(conviction for participation in the Whiskey Rebellion, an armed

resistance quashed by federal troops); United States v. Mitchell, 26

F. Cas. 1277(C.C.D. Pa. 1795) (same); see also United States v. Lee, 26

F. Cas. 907 (C.C.D.C. 1814) (acquittal in prosecution for supplying

enemy and informing them of troop locations); cf, Hurst, supra, at 272

(during colonial period, treason used to “ward off. . . extreme dangers

to the security of the states”).

114. U.S. Const., art. III, § 3, cl. 1 (defining treason as “levying

War against [the United States], or in adhering to [its] enemies, giving

them Aid and Comfort”); see also United States v. Hoxie, 26 F. Cas.

397, 398 (C.C. Vt. 1808) (construing treason to include “the embodying

of a military force, armed and arrayed, in a warlike manner, for the

purpose of forcibly subverting the government, dismembening the Union,

or destroying the legislative functions of congress”). Moreover, like the

provision for habeas corpus, the Treason Clause was listed in answer to

the criticism that the Constitution lacked a bill of rights. The Federalist

84, at 51] (Alexander Hamilton) (Clinton Rossiter ed. 1961).

115. Treason was not traditionally limited to citizens but also

encompassed aliens residing in the United States who owed allegiance

(Cont'd)

Bollman,''® Chief Justice Marshall dismissed the charges against

Aaron Burr’s co-conspirators, Erick Bollman and Samuel

Swartwout, for levying war against the United States.''’

He construed the offense narrowly, emphasizing the stigma

treason accusations carried and the particular danger of their

misuse.''* Marshall, however, never suggested that individuals

like Bollman and Swartwout could be confined outside a

criminal proceeding, but rather emphasized Congress’ power

to enact statutes to punish militant conspirators for “[c]rimes

so atrocious as those which have for their object the subversion

by violence of those laws and those institutions which have

been ordained in order to secure the peace and happiness of

society.”"’’ And, indeed, Congress has since enacted numerous

(Cont'd)

to the country. E.g., Carlisle v. United States, 83 U.S. 147, 155 (1872)

(even temporarily domiciled aliens owe obligation of fidelity and

obedience, and are subject to prosecution for treason). Amici do not

address the distinct question posed by the preventative detention of

“enemy aliens.” See Alien Enemies Act of July 6, 1798, ch. 66, 1 Stat.

577 (currently codified at 50 U.S.C. §§ 21-24 (1994)). This emergency

power is based on express congressional authorization, e.g., Brown v.

United States, 12 U.S. (8 Cranch) 110, 126 (1814) (Marshall, C.J.), and,

moreover, is confined to a declared war between the United States and

a foreign nation or government and to the “natives, citizens, denizens,

or subjects of that hostile nation or government,” 1 Stat. 577, thus

precluding the dangers to individual liberty a broader grant of executive

power would pose. And, as in England, habeas corpus was available to

“enemy aliens” to challenge the jurisdictional facts underlying their

detention. E.g., Lockington s Case, Bright (N.P.) 269, 283 (Pa. 1813)

(Tilghman, C.J.) (British citizen detained during War of 1812); id. at

298-99 (Brackenridge, J.) (“I do not see that any habeas corpus can

issue, unless the applicant can make an affidavit in the first instance,

that he is nct an alien enemy .. . .”) (second emphasis added).

116. 8 U.S. (4 Cranch) 75 (1807) (Marshall, C J.).

117. Id. at 135.

118. Jd. at 125 (“[T]}here is no crime which can more excite and

agitate the passions of men than treason. . . .”).

119. Jd. at 126-27; see also id. at 127 (these individuals “should

receive such punishment as the legislature in its wisdom may provide”).

criminal statutes punishing war-like acts and conspiracies against

the United States.'”°

In short, the protections of habeas corpus againsi unlawful

and indefinite detention by the executive were not subordinated

to military power, even during wartime.

C. Habeas Corpus Ensured Meaningful Review for

those in Military Custody

Even if, as the Solicitor General asserts, the President has

the authority to detain individuals like Padilla outside the civilian

justice system, he nonetheless cannot confine such persons

without meaningful judicial review of the allegations against

them.'?! Since this Court’s first habeas cases, the writ has

enabled prisoners to contest the facts underlying their executive

detention.'” For those in military custody, the wnt has ensured

that the officials exercising their authority remained within

proper bounds, thus providing a fail-safe against the “historic

120. E.g., 18 U.S.C. § 2384 (criminalizing seditious conspiracy,

including conspiracy to levy war against United States); id. § 2332a(a)

(criminalizing use, attempted use, or conspiracy to use weapons of mass

destruction); id. § 844 (criminalizing certain manufacture and handling

of explosive materials). None, of course, contains the particular

evidentiary requirements of the Treason Clause. E.g., U.S. Const.

art. III, § 3, cl. 1 (conviction for treason only “on the Testimony of two

Witnesses to the same overt Act, or on Confession in open Court”).

121. Whether the President has the authority to seize and detain

Padilla as an “enemy combatant” encompasses the subsidiary issue of

whether that purported authority is so broad as to include a denial of his

right to contest the facts on which that unilateral executive designation

is based, or to consult with counsel, which the government has only

recently provided as a matter of discretion and with significant

restrictions. Sup. Ct. R. 14(a). The issue of the President’s authority to

seize and detain individuals as “enemy combatants” without meaningful

judicial review is also before this Court in Hamdi v. Rumsfeld, No. 03-

6696, cert. granied Jan. 9, 2004.

122. E.g., Bollman,8 U.S. (4 Cranch) at 135 (discharging prisoners

charged with treason based on insufficient evidence); United States v.

Hamilton, 3 U.S. (3 Dall.) 17, 17-18 (1795) (bailing prisoner arrested

for treason after review of factual basis for commitment).

fear of the corrosive effect upon liberty of exaggerated military

power.””'* By scrutinizing the legality of military confinement,

the wmit has historically performed “what is its perhaps most

essential judicial task: freeing persons from illegal official

restraints not founded in judicial action.”’'4

During the War of 1812, habeas was viewed as a remedy

against unlawful military confinement.'* For example, in

In re Stacy,'*® the court reviewed a habeas petition filed by

Samuel Stacy, detained as a spy and traitor at Sackets Harbor

on Lake Ontario, an area both sides viewed as critical to the

success of the war.'’’ Stacy’s capture had come shortly after

Bnitish troops had landed, attacked, and nearly captured Sackets

Harbor,'** and U.S. military commanders blamed Stacy for the

near-loss of this critical military post.'?? Stacy claimed he was

exempt from military jurisdiction based on U.S. citizenship,

and the court issued a writ of habeas corpus commanding the

military to produce him.'*° When the official refused, Chancellor

Kent sought enforcement, declaring that “[a] military

commander” was “assuming criminal jurisdiction over a

123. “Developments in the Law—Federal Habeas Corpus,” supra,

at 1210 (internal quotation marks and citation omitted).

124. Oaks, “Habeas Corpus in the States,” supra, at 266.

125. Counsel for amici are grateful for the suggestions of Professor

Ingrid Brunk Wuerth, which informed this section’s discussion of judicial

review of executive detention during the War of 1812, and which are

discussed in greater detail in Ingrid Brunk Wuerth, “The President’s

Power to Detain ‘Enemy Combatants’: Modern Lessons from Mr.

Madison’s Forgotten War,” 98 Nw. U.L. Rev. (forthcoming 2004).

126. 10 Johns. 328 (N.Y. Sup. Ct. 1813) (Kent, C.J.).

127. Robert Malcomson, Lords of the Lakes: The Naval War on

Lake Ontario, 1812-1814, at 16 (1998).

128. /d. at 127-29.

129. 2 The Naval War of 1812: A Documentary History 499, 521

(William S. Dudley ed. 1992) (citing letter from Commodore Isaac

Chauncey to Secretary of the Navy William Jones).

130. 10 Johns. at 328-29.

private citizen, . . . holding him, in the closest confinement, and

contemning the civil authority of the state.”!”'

The military’s unlawful confinement of a civilian was also

the basis for the court’s decision in Smith v. Shaw.'*? Shaw too

had been held at Sackets Harbor on spying and other charges.

When Shaw sued for false imprisonment following his release,

the military maintained it had the authority to detain him

pursuant to a court-martial or, at a minimum, pending its

investigation of the facts since Shaw’s detention was “essential

to the public safety.”'*? The court, however, concluded that

Shaw, as a U.S. citizen, was not subject to military jurisdiction

and affirmed the damage award'** for his approximately two-

week-long confinement.'** Its decision rested partly on basic

principles of habeas law. Specifically, Chief Judge Smith

Thompson explained that the military’s contention that Shaw’s

detention was for the purpose of trying him by court-martial

would have been insufficient to defeat a habeas petition, as it

was for the courts to determine whether Shaw was subject to

military detention in the first place.'*°

131. Jd. at 334. Stacy was subsequently released by the Secretary

of War, who recognized the military lacked authority over him.

2 The Naval War of 1812, supra, at 521 n.1 (no authority for military to

detain citizen as spy under Articles of War of 1806); cf Abraham D.

Sofaer, “Emergency Power and the Hero of New Orleans,” 2 Cardozo

L. Rev. 233, 242-43, 248 (1981) (court imposed contempt sanction and

fine on General Andrew Jackson for flouting writ of habeas corpus

challenging Jackson’s exercise of court-martial jurisdiction in New

Orleans near end of War of 1812). Although decided under state law,

cases from this era demonstrate courts’ general understanding of the

nature and purpose of habeas corpus. Cf. Gerald L. Neuman, “Habeas

Corpus, Executive Detention, and the Removal of Aliens,” 98 Colum.

L. Rev. 961, 993 (1998) (state courts’ application of habeas law to enemy

aliens).

132. 12 Johns. 257 (Sup. Ct. N.Y. 1815) (Thompson, C.J.).

133. Jd. at 261.

134. Id. at 259, 268.

135. Id. at 257-58.

136. Jd. at 266-67.

Enlistment cases from the same period further underscore

the wnit’s role in remedying abuses by the military. To meet a

pressing military need during the war, the federal government

paid bounties to enlistment brokers for each new recruit

obtained, a practice that led to a number of fraudulent

enlistments, including of minors.'*’ On habeas petitions

challenging the enlistments, courts refused to be bound by the

facts stated in the return, and instead exercised their power “to

inquire into the circumstances” under which an individual was

unlawfully restrained of his liberty.'** Federal courts similarly

held evidentiary hearings in challenges to military enlistments

on habeas, allowing applicants to contest the facts asserted in

the custodian’s return.'*’ In providing relief against “abuses of

power by government officials,” the writ thus enforced “the

principle that in a free country, the civil power must

predominate.”'*°

Here, the Solicitor General maintains that the district court

must confine its inquiry solely to whether the executive’s

submissions provide “some evidentiary support” that Padilla

falls within the class of persons the President has deemed “enemy

combatants.”’'*' Such an eviscerated notion of habeas review is

137. Mare M. Arkin, “The Ghost at the Banquet: Slavery,

Federalism, and Habeas Corpus for State Prisoners,” 70 Tul. L. Rev. 1,

14-15 (1995).

138. Commonwealth v. Harrison, 11 Mass. 63, 65 (1814);

see also Commonwealth v. Cushing, 11 Mass. 67, 67, 71 (1814)

(accepting alleged deserter’s affidavit and ordering his release from

military custody on ground enlistment was void since he was minor

when enlisted); Arkin, supra, at 18 (state courts generally refused to

accept returns of military officials “at face value”’).

139. Eric M. Freedman, Habeas Corpus: Rethinking the Great

Writ of Liberty 27-28 & 165 n.55 (2001) (citing cases).

140. William E. Nelson, “The American Revolution and the

Emergence of Modern Doctrines of Federalism and Conflict of Laws,”

in Law in Colonial Massachusetts, 1630-1800, at 419, 457 (1984).

141. Br. of Resp’t-Appellant to the U.S. Court of Appeals for

the Second Circuit at 47. The “some evidence” standard has been

(Cont'd)

at odds with the writ’s long established role of remedying

unlawful and indefinite executive detention. Indeed, the scope

of review articulated by the government is strikingly similar to

the minimal review exercised under a suspension act, where, as

noted above, a court’s inquiry was confined to determining

whether a prisoner was within the category of persons for whom

the writ’s core protections — accusation and trial — had

temporarily been suspended.'*? Congress, however, has not

suspended habeas corpus, and the writ’s history demonstrates

that the President thus lacks the authority to detain Padilla

indefinitely without criminal charges and trial or, at a minimum,

without some other meaningful opportunity to contest the

allegations against him.

CONCLUSION

For the foregoing reasons, amici respectfully request that

this Court affirm the judgment of the Court of Appeals.

(Cont'd)

inappropriately transported from an entirely different context, where a

habeas court exercises supervisory review over a prior administrative

proceeding conducted in accordance with due process, and not, as

here, where it provides the sole safeguard against indefinite executive

detention without any underlying process at all. Resp. Br. for Resp’t-

Appellant-Cross Appellee to the U.S. Court of Appeals for the Second

Circuit at 41 (citing cases). See generally Gerald L. Neuman, “The

Constitutional Requirement of ‘Some Evidence,’” 25 San Diego L. Rev.

631 (1988) (“some evidence” standard method of review employed when

applicant seeks judicial scrutiny of previous adjudicatory proceeding in

which he could present evidence and contest government’s factual

assertions).

142. See supra notes 39-40; see also Ex parte Milligan, 71 U.S.

(4 Wall.) 2, 130-31 (1866) (“[T]he suspension of the privilege of the

writ of habeas corpus does not suspend the writ itself. The writ issues

as a matter of course; and on the return made to it the court decides

whether the party applying is denied the nght of proceeding any further

with it.”).

Respectfully submitted,

MIcHaeL J. WisHNIE JONATHAN L. HAFeTz

Professor of Clinical Law = Counsel of Record

New York UNIVERSITY Lawrence S. LUSTBERG

SCHOOL oF Law Gispsons, Det Deo, DoLan,

245 Sullivan Street GriFFINGER & VeccHIONE, P.C.

New York, NY 10012 One Pennsylvania Plaza

(212) 998-6471 37" Floor

New York, NY 10119-3701

(212) 649-4743

Counsel for Amici Curiae

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