I.
Previewing an extended forthcoming scholarly work tentatively entitled “Habeas Corpus in Three Dimensions” resulting from a recent research leave in New Hampshire, Professor Freedman outlined each of his three dimensions.1. “Habeas Corpus as a Common Law Writ.’”Professor Freedman began by recounting four New England cases of the seventeenth and eighteenth centuries in which wrongfully imprisoned plaintiffs were released by courts although their filings had not sought writs of habeas corpus. Presenting parallel cases of prisoners who were released through that writ, he argued that for many scholarly purposes to restrict research to writs explicitly labeled “habeas” is too narrow. He suggested that there is often little point in pursuing distinctions among writs in this context both because of the informality of colonial legal practice, and because the question was one on which nothing particularly turned when the issue was a potentially wrongful imprisonment – an issue which led the courts to cut through whatever technicalities they might otherwise have been inclined to enforce.
Citing a variety of case examples, he suggested that, regardless of writ, false imprisonment cases shared at least two characteristics:
A. An allegedly false imprisonment was an emergency. The judicial system activated itself to investigate the matter forthwith; and
B. The focus was on the direct pragmatic and speedy resolution of the specific case at hand. The impulse is not to rule on global issues of law but rather to work things out so that the prisoner could be released immediately if warranted.
2. “Habeas Corpus as a Legal Remedy for Government Misconduct”
In this section, which spanned the colonial and early national periods, Professor Freedman pointed out that habeas was only one of wide array of remedies available for alleged abuses committed by government officials. These included public and private actions for contempt, public and private criminal prosecutions, and a variety of private damages actions against both executive and judicial officers. He illustrated these with the saga of Isaac Hodsdon, a U.S. Army captain who detained alleged enemy operatives during the War of 1812 and wound up being subject to most of these actions. The narrative thread of the account was that the authority previously concentrated in the jury was gradually dispersed to other organs of government as the system of separation of powers crystallized in the United States in the first third of the nineteenth century.
3. “Habeas Corpus and Separation of Powers”
Bringing the story forward to modern times, Professor Freedman returned to his first themes. Describing the saga of the Boumediene case involving the Guantanamo detainees (in which he assisted the legal team), he suggested that one lesson was that habeas corpus could effectively serve its newly-invigorated role as an enforcer of separation of powers by re-invigorating the basic approach that common law judges took to false imprisonment actions.
II.
Professor Vladeck entitled his presentation “‘History” and Contemporary Debates Over the Suspension Clause.” He began by pointing out the importance of recovering the scope of common law habeas corpus in light of its legislative constriction well before 9/11 in such contexts as immigration and post-conviction cases. He then noted that although the Constitution protects “at a minimum” habeas corpus as it existed at common law, the Court has never suggested that it does not protect more. Indeed, a series of Court cases from the 1930's and 1940's expressly sanctioned the use of common law judicial powers even when a statute existed. Although there were few occasions to repeat the point after the codification of the federal statutes in 1948, the Court implicitly did so at least twice, in 1952 and 1977. In both cases, which upheld statutory substitutes for common law habeas, the implication was that if the statutory remedy were inadequate to test the validity of the detention the legislation would not only be invalid under the Suspension Clause but the courts would affirmatively exercise their dormant common law habeas powers. Parsing the Supreme Court’s 2008 Boumediene opinion he noted its repeated emphasis on habeas as a device for enforcing separation of powers and drew from this the conclusion that the Constitution protects the power of the courts to act even – if not especially – in the absence of legislation.
He joined Professor Freedman in hearty disapprobation of the dictum in opinion in Ex Parte Bollma, 8 U.S. (4 Cranch) 75 (1807) to the effect that the judiciary could only grant habeas corpus if the legislature gave it that power. A variety of historical work, most recently that in the just-published Paul D.Halliday, Habeas Corpus: From England to Empire (Harvard University Press, 2010) – which both speakers praised – shows that habeas corpus at the time of the founding was characterized by sweeping judicial power and a very limited judicial role. Professor Vladeck observed that although the judges of the District Court in Washington hearing the Guantanamo cases after Boumediene had disagreed on various points, they had in the overwhelmingly number of cases ruled in favor of the prisoners regardless of the legal standards they adopted. He urged that, contrary to recent suggestions from various quarters that it was inappropriate to work out such still unanswered questions as the geographical scope of the writ and the nature of the remedies to be ordered through a process of case-by-case incrementalism (the critique being that Congress should do the job), this historically-tested methodology was in fact precisely what gave the judiciary its strength and effectiveness within the
governmental structure.
III.
Professor Cottrol in his comments raised the issue of whether an English court’s common law authority to issue the writ was defined by (a) the legal status of the territory to which it was sent (the speakers, relying on Halliday’s work responded “no”), (b) the question of whether the prisoner was “within the King’s peace” (maybe, said the panelists, but out of many hundreds of cases surveyed by Halliday only an issue in one or two factually extreme instances), or (c) the amenability of the jailer to judicial authority (which both speakers agreed was the functional test actually applied).
