By Andrew Cohen
Habeas corpus debates have shaped defining moments in American history, from the Civil War to World War II to the aftermath of 9/11. A recent California Law Review symposium about Professor Amanda Tyler’s new book on the subject showed the importance—and challenges—of this longstanding safeguard against unlawful detention.
Top jurists and legal scholars convened at Berkeley Law to debate timely issues raised by the book, Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay. Among them: the role of habeas corpus in our constitutional framework, the role of history in constitutional interpretation, and the separation of powers in wartime.
“Amanda’s book is incredible,” said University of Virginia Law Professor Saikrishna Prakash. “Not quite Harry Potter, but it’s close. Berkeley ought to be very proud of her.”
Indeed, some research wizardry was needed to unpack more than four centuries of legal developments. Tyler weaves a compelling story about the Writ of Habeas Corpus in wartime over the course of Anglo-American history, from Britain establishing it in 1679 through its role during the war on terror.
The Constitution states that the Writ shall not be suspended unless required for public safety by instances of rebellion or invasion. Speaking on a panel with fellow judges, U.S. Sixth Circuit Court of Appeals Judge Amul Thapar ’94 noted that suspension power clearly belongs to the legislative branch—not the executive.
“When they wrote the Suspension Clause, that’s why they placed it in Article One of the Constitution, because Congress is meant to exercise that power,” he said.
Yet the liberties some leaders have taken with that language was a hot topic at the symposium. Djenab Conde ’19, editor-in-chief of the California Law Review and Tyler’s research assistant, recalled “proofing her book last semester and being amazed by many things, especially how many of our respected presidents have ignored the Suspension Clause.”
Historical low point
The most infamous suspension of the Writ occurred in World War II, leading to the internment of more than 110,000 Japanese-Americans after the bombing of Pearl Harbor. “Had we followed the Writ’s original meaning, we wouldn’t be looking back 70 years later and saying, ‘What the heck were they doing?’” Thapar said.
Berkeley Law Professor and fellow legal historian Karen Tani lamented how figures such as U.S. Attorney General Francis Biddle caved to political pressure, failed to uphold the law—and failed to protect innocent Americans of Japanese descent.
“Biddle and others didn’t think this (internment) action was constitutional,” Tani said. “I’m so grateful to Amanda for emphasizing this. The more convenient take is ‘Oh, this was an exceptional time, the country had been attacked, there was no time for procedural niceties.’ It’s rare to see such a stark turning point in American constitutional history.”
Tani described the pressure Biddle faced from the War Department, and the long history of discrimination against Asian-American immigrants in the U.S. He made the “exceptional step” of soliciting advice from three lawyers outside his own department in order to validate the decision.
“Law school trains you to see both sides of legal issues,” Tani said. “But as Amanda’s book shows, there are times when the law is clear and interpretation should be not be available. You shouldn’t be convinced to see gray where you see black and white.”
A valued resource
Judges and scholars alike hailed the book’s importance and usefulness. Harvard Law Professor Vicki Jackson called it “an essential reference for many generations to come,” and Northwestern Law Professor James Pfander said Tyler “has made a lasting, serious, and constructive contribution to our historical knowledge and understanding of constitutional meaning.”
U.S. District of Columbia Court of Appeals Judge Thomas Griffith added, “If the role of judge is finding the law rather than making it, then historical inquiry like this is critical.”
Panelists stated appreciation for the book’s ability to recount habeas corpus’ history through engaging stories, and for underscoring its many tensions. President Abraham Lincoln suspended the Writ at the outset of the Civil War to protect Washington, D.C., alleging that he had to because Congress was not in session when the war began.
“You see Britain and the U.S. grappling with the same challenges for 400 years,” said U.S. Ninth Circuit Court of Appeals Judge John Owens. “Lincoln was one of our greatest presidents, and he struggled with it. President Obama said the first thing he’d do in office is shut down Guantanamo Bay, and that didn’t happen.”
The judges discussed their own role, with varying views about how active the judiciary should be. Some asked for more guidance from Congress, especially given the war on terror’s legal complexities.
“Though the main development of habeas corpus came from political branches, the darker points of the book tend to be when the judiciary is involved,” said U.S. Seventh Circuit Court of Appeals Judge Amy Coney Barrett to laughter from the audience.
Thapar also drew laughs when explaining one of his reasons for appreciating Tyler’s book and other legal scholarship.
“When I went to law school here, a professor told me that the A students become professors, the B students become judges, and the C students become millionaires,” he said. “So, as a B student, why not glean knowledge from the A students?”