Habeas corpus, suspension, and detention: Another view

Notre Dame Law Review

Volumn 82, Issue 1, 2006, Pages 59-95

  Shapiro, David L ^a  

^a HARVARD UNIVERSITY   (United States)

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EID: 33846582349     PISSN: 07453515     EISSN: None     Source Type: Journal    
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References (270)

1. U.S. CONST. art. I, § 9, cl. 2.
2. The writ of habeas corpus has many varieties and purposes, all involving the literal (or, later on, figurative) production of a detainee before the court, and some forms of the writ have developed more recently than others. For the range and forms of its current use, see BLACK'S LAW DICTIONARY 728 (8th ed. 2004).
3. For informative histories of the evolution of the writ, see, for example, WILLIAM F. DUKER, A CONSTITUTIONAL HISTORY OF HABEAS CORPUS (1980);
4. ROLLIN C. HURD, A TREATISE ON THE RIGHT OF PERSONAL LIBERTY, AND ON THE WRIT OF HABEAS CORPUS (Albany, W.C. Little & Co. 1858);
5. ROBERT S. WALKER, THE CONSTITUTIONAL AND LEGAL DEVELOPMENT OF HABEAS CORPUS AS THE WRIT OF LIBERTY (1960). The most significant form of the writ, and the one most relevant to the meaning and application of the Suspension Clause, has been known before and since adoption of the Constitution as the writ of habeas corpus ad subjiciendum, the form designed to test the lawfulness of the petitioner's detention. It is the form sometimes referred to as "The Great Writ."
6. The debate about the relative roles of the three branches of the federal government in interpreting the Constitution is a continuing one. See RICHARD H. FALLON, JR., DANIEL J. MELTZER & DAVID L. SHAPIRO, HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 88-92 (4th ed. 1996). (Space limitations compelled the unfortunate omission of this material in the next edition.) But there is little doubt that the Court today views its role-limited only by the doctrines of jurisdiction and justiciability-as that of final arbiter of the meaning and application of the Constitution.
7. See, e.g., United States v. Nixon, 418 U.S. 683, 704-05 (1974);
8. cf. Cooper v. Aaron, 358 U.S. 1, 18 (1958) (rejecting state officials' claim that they had no enforceable duty to comply with federal court orders resting on the Supreme Court's interpretation of the Constitution).
9. Although lawyers and judges generally speak of suspension of the writ, the text actually refers to suspension of "[t]he Privilege of the Writ." U.S. CONST, art. I, § 9, cl. 2. There may be a difference between the two phrases, but for convenience, the shorter form will be used here.
10. Trevor W. Morrison, Hamdi's Habeas Puzzle: Suspension as Authorization?, 91 CORNELL L. REV. 411, 415 (2006).
11. Among the many other scholarly discussions of the Suspension Clause, perhaps the one that touches most closely on the central issue in this essay is James E. Pfander, The Limits of Habeas Jurisdiction and the Global War on Terror, 91 CORNELL L. REV. 497 (2006).
12. And for insightful discussion of a closely related problem, see Eugene Kontorovich, The Constitution in Two Dimensions: A Transaction Cost Analysis of Constitutional Remedies, 91 VA. L. REV. 1135 (2005);
13. Eugene Kontorovich, Liability Rules for Constitutional Rights: The Case of Mass Detentions, 56 STAN. L. REV. 755 (2004) [hereinafter Kontorovich, Liability Rules].
14. William Duker devotes most of an entire chapter (chapter 3, pages 126-80) to an argument that the Suspension Clause was intended "only to restrict Congressional power to suspend state habeas for federal prisoners." DUKER, supra note 2, at 126;
15. see also INS v. St. Cyr, 533 U.S. 289, 337 (2001) (Scalia, J., dissenting) (contending that the Suspension Clause does not guarantee any content to, or even the existence of, the writ; rather it limits only the ability of Congress to withhold temporarily whatever it has already authorized by statute);
16. Rex A. Collings, Jr., Habeas Corpus for Convicts-Constitutional Right or Legislative Grace?, 40 CAL. L. REV. 335, 342 (1952) (noting contemporary criticism of the negative form of the text of the Suspension Clause);
17. Dallin H. Oaks, Habeas Corpus in the States-1776-1865, 32 U. CHI. L. REV. 243, 248-49 (1965) (suggesting that at the time the Suspension Clause was drafted, the question whether the Constitution guaranteed the privilege of the writ was not a matter of concern, perhaps because the writ was then available in every state).
18. U.S. CONST, art. I, § 9, cl. 2.
19. Id.
20. See Milton Cantor, The Writ of Habeas Corpus: Early American Origins and Development, in FREEDOM AND REFORM 55, 75 (Harold M. Hyman & Leonard W. Levy eds., 1967) (noting uncertainty about whether the Clause guaranteed the availability of the writ or simply assumed its existence at common law);
21. Collings, supra note 6, at 340-41.
22. For further discussion and references, see RICHARD H. FALLON, JR., DANIEL J. MELTZER & DAVID L. SHAPIRO, HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 1289-93 (5th ed. 2003) [hereinafter HART & WECHSLER].
23. Blackstone, whose work is generally recognized as perhaps the principal reference and source of learning for lawyers practicing in the colonies and later in the states in the years leading up to and following the adoption of the Constitution, refers to the writ generally as "the most celebrated writ in the English law." WILLIAM BLACKSTONE, 3 COMMENTARIES *129.
24. He also refers to habeas corpus ad subjiciendum as "the great and efficacious writ, in all manner of illegal confinement." Id. at *131.
25. He goes on to extol the significance of the writ in maintaining "the glory of the English law," id. at *133,
26. by requiring the custodian to express "upon every commitment the reason for which it is made, that the court, upon a habeas corpus, may examine into its validity," id. at *134.
27. Indeed, although the writ was known and available in at least some form in every original state, see DUKER, supra note 2, at 116, a significant majority of those states did not guarantee the availability of the writ in their own constitutions,
28. see Oaks, supra note 6, at 247.
29. Section 14 of the Judiciary Act of 1789, ch. 20, 1 Stat. 73, 81-82, provided that the courts of the United States shall have power to issue writs of scire facias, habeas corpus,... and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law. And... either of the justices of the supreme court, as well as judges of the district courts, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment. In Ex parte Bollman, 8 U.S. (4 Cranch) 75 (1807), the Court read these provisions as authorizing not only issuance of the writ as auxiliary to jurisdiction already conferred but also as authorizing an independent action in habeas corpus; the power expressly conferred on individual justices and judges by the second quoted sentence was held to be implicitly vested in the courts. Id. at 95-96;
30. see HART & WECHSLER, supra note 10, at 1286.
31. 8 U.S. (4 Cranch) 75, 95 (1807). The issue discussed in this paragraph of text divided the Court in INS v. St. Cyr, 533 U.S. 289, 291-92 (2001). After concluding, in dictum, that the Suspension Clause at a minimum protected the writ as it existed in 1789, the majority viewed the language of the Court in Bollman as consistent with this protection. See id. at 304 n.24.
32. Justice Scalia, speaking for himself and two other Justices on this point, argued that under Bollman, the Suspension Clause conferred no inherent power to grant the writ. See id. at 339-41 (Scalia, J., dissenting).
33. Bollman, 8 U.S. (4 Cranch) at 95. Chief Justice Marshall's precise language, admittedly subject to a range of interpretations, was: Acting under the immediate influence of this injunction [the Suspension Clause], they [Congress] must have felt, with peculiar force, the obligation of providing efficient means by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation, they give, to all courts, the power of awarding writs of habeas corpus. Id.
34. Of course, the obligation here could have been regarded as self-executing, and some day that issue may have to be squarely faced. But so far, it has not.
35. The word "surely" is often used, as here, to indicate that the author's certainty is not universally shared. Indeed, a number of Supreme Court decisions, including Ableman v. Booth, 62 U.S. (21 How.) 506, 526 (1859), and Tarble's Case, 80 U.S. (13 Wall.) 397, 411-12 (1872), can be read as holding that the states are constitutionally precluded from granting a writ of habeas corpus ad subjiciendum to a petitioner held in federal custody. But they can also be read as simply asserting (implied) exclusive federal jurisdiction to grant such a writ, and if read more broadly, may well run afoul of basic concepts of the role of the state courts in enforcing federal, and especially constitutional, rights.
36. See HART & WECHSLER, supra note 10, at 437-39.
37. As noted by Walker, during the sixteenth and seventeenth centuries: [T]he Charter [Magna Carta] and the writ of habeas corpus became inextricably intertwined.... In the battle against royal despotism the Charter was adduced as evidence of the illegality of arbitrary executive commitments and the writ of habeas corpus was seized upon as the most likely instrument by which such commitments could be subjected to due process. The result was the clear emergence of the Charter as the touchstone of the subject's liberty and the habeas corpus as the instrumental guarantee of his right. WALKER, supra note 2, at 88;
38. see also BLACKSTONE, supra note 11, at *133-34 (linking the guarantees of Magna Carta and the role of the writ of habeas corpus).
39. Professor Freedman reached a similar conclusion (though differently phrased) after examination of the records of the Constitutional Convention and of the ratification debates: "[The records suggest] that all parties read it [the Suspension Clause] as protecting broadly against Congressional interference with the power that federal and state courts were each assumed to possess: to order the release on habeas corpus of both federal and state prisoners." Eric M. Freedman, The Suspension Clause in the Ratification Debates, 44 BUFF. L. REV. 451, 468 (1996).
40. U.S. CONST, art. I, § 9, cl. 2.
41. See supra note 11.
42. See generally DUKER, supra note 2, at 95-116 (describing the extension of the writ in the British colonies in North America).
43. See generally William F. Duker, The English Origins of the Writ of Habeas Corpus: A Peculiar Path to Fame, 53 N.Y.U. L. REV. 983 (1978) (arguing that the "Great Writ" developed over time into an instrument protecting personal liberty, but began as a means of facilitating a monarchical judicial process).
44. Blackstone noted that legislative action had on occasion been required-as a result of various "evasions" and "abuses" by some English courts. BLACKSTONE, supra note 11, at *134-35.
45. And Cantor referred not only to the writ's "dark and hazy past" and its development in the United Kingdom through "trial-and-error usage, and compromise arrangements," Cantor, supra note 9, at 58,
46. but also to the frequent denial of relief in the American colonies when habeas was sought to curb the exercise of arbitrary power, id. at 60-73.
47. But he concludes that by the late eighteenth century, "habeas corpus was deeply embedded in the interstices of colonial thought, much like the common law itself." Id. at 73.
48. E.g., In re Lincoln, 202 U.S. 178, 180 (1906);
49. Ex parte Rovall, 117 U.S. 241, 251 (1886);
50. Ex parte Siebold, 100 U.S. 371, 375 (1880).
51. DUKER, supra note 2, at 27-33.
52. For an informative discussion of the role of habeas corpus in delineating executive authority during the sixteenth and seventeenth centuries, see id., at 40-48.
53. The Petition of Right, 1627, 3 Car. 1, c. l (Eng.), noted in WALKER, supra note 2, at 66-70, was essentially supplicatory, and fell short of its goal, at least at the outset.
54. Act of 1679, 31 Car. 2, c. 2 (Eng.). Though frequently referred to by historians as one of the most famous and important statutes in the annals of English law, see, e.g., DUKER, supra note 2, at 52,
55. Henry Hallam notes that the Act introduced no principle and conferred no new rights, HENRY HALLAM, THE CONSTITUTIONAL HISTORY OF ENGLAND 430-31 (William Smith ed., 9th ed. 1905).
56. Rather it sought to remedy several abuses that had developed, for example, by authorizing individual judges to grant the writ during the vacation and by extending the geographical reach of the writ (to thwart efforts to move the prisoner outside the court's jurisdiction). Id. at 431-32.
57. But it did not empower courts to inquire into the validity of facts alleged in the warrant ordering the detention, and extended only limited guarantees (requiring that if an indictment was not filed within a certain period, the petitioner had a right to release on bail) in cases of commitment for treason or felony. Id. at 432.
58. To a significant extent, then, petitioners, even after enactment of the 1679 Act, were thrown back on the habeas remedy as it had existed, and continued to exist, at common law. Id.
59. See HART & WECHSLER, supra note 10, at 1284.
60. Id. at 1284-85.
61. Many of the questions raised in this paragraph are explored in the following historical studies: DUKER, supra note 2;
62. HALLAM, supra note 29;
63. HURD, supra note 2;
64. WALKER, supra note 2;
65. Cantor, supra note 9;
66. Oaks, supra note 6.
67. For further discussion and debate of some of these questions, see, for example, Edward Jenks, The Story of the Habeas Corpus, 18 LAW Q. REV. 64 (1902);
68. Dallin H. Oaks, Legal History in the High Court-Habeas Corpus, 64 MICH. L. REV. 451 (1966);
69. Ann Woolhandler, Demodeling Habeas, 45 STAN. L. REV. 575 (1993).
70. A case sometimes relied on by judges and commentators to show that the inquiry on a habeas petition did not stop at the question of "jurisdiction" is Bushell's Case, 124 Eng. Rep. 1006 (C.P. 1670) (use of the writ in this famous case has been regarded as establishing that jurors could not be imprisoned for bringing in a verdict believed by the court to be unacceptable). But as one scholar has noted, Bushell's Case involved an attack on the judgment not of a court of general jurisdiction but of an "inferior" court (i.e., one not having general jurisdiction to try offenses).
71. See DUKER, supra note 2, at 227. Such courts stood on a different footing when their actions were challenged by a habeas petition in a "superior" court.
72. Id. at 226-27;
73. Oaks, supra note 32, at 462-67 (noting five other special factors relating to Bushell's Case that have been overlooked by those seeking to rely on it).
74. See DUKER, supra note 2, at 95-116 (noting that by the time of ratification the writ was recognized in all the states and documenting the range of use and recognition of the writ in the states and the predecessor colonies).
75. See HART & WECHSLER, supra note 10, at 1395-99 (citing additional supporting authorities).
76. Among the most significant cases are Jones v. Cunningham, 371 U.S. 236. 242-43 (1963), which held that one is still in "custody" while on parole,
77. and Carafas v. LaVallee, 391 U.S. 234, 237 (1968), which held that the petitioner's unconstitutional release did not moot a case in which the habeas petition had been filed during the period of the petitioner's imprisonment.
78. See Gerald L. Neuman, The Habeas Corpus Suspension Clause After INS v. St. Cyr. 33 COLUM. HUM. RTS. L. REV. 555, 592 (2002).
79. In the view of some, "jurisdiction" was never the definitive test in the federal courts for the validity of detention, even detention pursuant to a judgment of conviction. See, e.g., Gary Peller, In Defense of Federal Habeas Corpus Relitigation, 16 HARV. C.R.C.L. L. REV. 579, 603-63 (1982).
80. In the view of others, "jurisdiction" was relevant in certain types of cases, but the definition of the term was gradually enlarged until, in decisions leading up to and culminating in Brown v. Allen, 344 U.S. 443 (1953), it became irrelevant, even in the context of a federal collateral attack on a state conviction.
81. See, e.g., Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 HARV. L. REV. 441, 483-500 (1963).
82. See generally HART & WECHSLER, supra note 10, at 1314-17 (contrasting differing historical views of jurisdiction and habeas corpus).
83. Indeed, in Peyton v. Rowe, 391 U.S. 54, 55 (1968), the Court, overruling an earlier decision, held that a habeas petitioner could challenge the validity of the second of two consecutive sentences while still serving the first.
84. The former distinction between "inferior" courts (i.e., courts that had limited jurisdiction and that might not be courts of record) and courts of general jurisdiction, discussed, inter alia, by Woolhandler, has ceased to be important, but the distinction between detention pursuant to court order and detention solely on the basis of executive decision remains significant. Woolhandler, supra note 32, at 589-90;
85. see, e.g., INS v. St. Cyr, 533 U.S. 289, 301 (2001);
86. Gerald L. Neuman, Habeas Corpus, Executive Detention, and the Removal of Aliens, 98 COLUM. L. REV. 961 (1998).
87. The retreat from the extensions of the writ during the Warren Court era focused primarily on its use by state prisoners complaining that their convictions violated their federal constitutional rights. Starting with such decisions as Stone v. Powell, 428 U.S. 465 (1976), Wainwright v. Sykes, 433 U.S. 72 (1977), and Teague v. Lane, 489 U.S. 288 (1989), the retreat was given further momentum by Congress in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (codified as amended in scattered sections of 8, 18, 22, 28, 40, & 42 U.S.C.), which contains a number of provisions restricting the writ's availability, perhaps most notably the section, codified in 28 U.S.C. § 2254(d) (2000), requiring increased deference to the factual and legal determinations of the state courts.
88. See generally HART & WECHSLER, supra note 10, at 1296-1399 (tracing the availability of federal review of state court convictions from the antebellum era through the passage of the AEDPA in 1996 and its aftermath).
89. 533 U.S. 289 (2001).
90. Id. at 337 (Scalia, J., dissenting).
91. Id. at 300-01 (majority opinion).
92. One of the questions before the Court was whether, in imposing restrictions on judicial review in certain statutory amendments to the immigration laws, Congress had limited the jurisdiction of the federal courts to entertain habeas corpus petitions, under 28 U.S.C. § 2241, raising legal challenges to petitioner's detention. St. Cyr, 533 U.S. at 298. The Court held that it had not, and in doing so, relied on the presumption in favor of judicial review, as well as on the substantial constitutional questions that, in its view, would be presented under the Suspension Clause if habeas corpus relief, as well as adequate alternative remedies, were unavailable. Id. at 298-314.
93. St. Cyr, 533 U.S. at 300-01.
94. Id.
95. (quoting Felker v. Turpin, 518 U.S. 651, 663-64 (1996)).
96. Id. at 301
97. (citing Swain v. Pressley, 430 U.S. 372, 380 n.13 (1977)). The Court relied on a similar statement (also dictum) in Felker. 518 U.S. at 663-64.
98. See 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 435 (Max Farrand ed., 1966) [hereinafter RECORDS OF THE FEDERAL CONVENTION].
99. President Lincoln ordered suspension of the writ during the Civil War (and prior to legislative authorization of suspension), an action that Chief Justice Taney held unconstitutional in Ex parte Merryman, 17 F. Cas. 144, 151-53 (C.C.D. Md. 1861) (No. 9487). (There is debate over whether the petition in Merryman was directed to Taney in his capacity as a circuit justice or as Chief Justice. See Michael Stokes Paulsen, The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation, 15 CARDOZO L. REV. 81, 90 n.27 (1993)).
100. In addition, the writ was suspended (without legislative authorization) by (then General) Andrew Jackson as commander at New Orleans. See DANIEL FARBER, LINCOLN'S CONSTITUTION 160 (2003);
101. Morrison, supra note 5, at 428, 429 & n.102. (Also, President Andrew Johnson reportedly suspended the writ for one of the conspirators involved in Lincoln's assassination.
102. See WILLIAM H. REHNQUIST, ALL THE LAWS BUT ONE 165 (1998)).
103. See generally Tor Ekeland, Note, Suspending Habeas Corpus: Article I, Section 9, Clause 2 of the United States Constitution and the War on Terror, 74 FORDHAM L. REV. 1475, 1487-88 (2005).
104. See generally Jeffrey D. Jackson, The Power to Suspend Habeas Corpus: An Answer from the Arguments Surrounding Ex parte Merryman, 34 U. BALT. L. REV. 11 (2004) (providing perhaps the most exhaustive discussion of this question).
105. Parliament effectively suspended the writ a number of times during the seventeenth and eighteenth centuries. See Collings, supra note 6, at 339-40 (listing instances and collecting citations).
106. To be sure, Section 9, the provision of Article I where the Suspension Clause appears, contains some prohibitions applicable to the Executive (e.g., bans on the granting of titles of nobility, U.S. CONST, art. I, § 9, cl. 8, and on the acceptance of any gift from a foreign state without the consent of Congress, id.). But the wording in these instances leaves no doubt of their scope. Moreover, these prohibitions do not contain exceptions authorizing actions in the absence of legislative authorization or approval.
107. Also, the first version of the Suspension Clause explicidy stated that the privileges and benefit of habeas corpus "shall not be suspended by the Legislature except upon the most urgent and pressing occasions, and for a limited time not exceeding _ months." RECORDS OF THE FEDERAL CONVENTION, supra note 47, at 334 (emphasis added). But after a later version appeared in the judiciary article,
108. see id. at 341, the final version came to rest in Article I.
109. For a fuller discussion of this evolution, see Ekeland, supra note 48, at 1484-86.
110. Most notably, Chief Justice Taney in Ex parte Merryman, 17 F. Cas. at 151-52. This view was also expressed by Chief Justice Marshall in Ex parte Bollman, 8 U.S. (4 Cranch) 75, 101 (1807),
111. and Justice Scalia, whose dissenting opinion in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), noted with approval the general assumption that only Congress may authorize suspension of the writ, id. at 562 (Scalia, J., dissenting).
112. See Ekeland, supra note 48, at 1517 (suggesting that this conclusion can be squared with the argument that an emergency could require immediate executive action when, say, Congress is not in session on the ground that "[t]he President could hold a detainee until Congress reconvenes and decides whether habeas corpus should be suspended"). In any event, I have little doubt that the Executive would act in this situation, and that Congress would later seek to ratify his action. Note that Congress's authorization of suspension of the writ, Act of Mar. 3, 1863, ch. 81, § 1, 12 Stat. 755, 755, followed Lincoln's initial decision to suspend the writ early in the Civil War in Proclamation No. 1, 13 Stat. 730 (Sept. 24, 1862).
113. Among the issues not explored in this section are (a) whether and to what extent the guarantee of the writ extends extraterritorially, and (b) whether and to what extent the guarantee permits distinctions to be drawn between U.S. citizens and aliens. Richard Fallon and Daniel Meltzer explore in detail these and related issues. See Richard H. Fallon, Jr. & Daniel J. Meltzer, Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror. 120 HARV. L. REV. (forthcoming June 2007). The questions explored by Fallon and Meltzer are especially critical in considering the validity of restrictions on the availability of habeas corpus to aliens detained at Guantanamo Bay, Cuba-restrictions imposed by 28 U.S.C.A. § 2241 (e) (West Supp. 2006) (see infra note 69)-and of even broader restrictions on the availability of the writ to aliens detained as "enemy combatant[s]" that would be imposed by several bills pending at the time this Article went to press.
114. See, e.g., S. 3901, 109th Cong. § 6 (2006); S. 3861, 109th Cong. § 5 (2006).
115. See supra notes 47-53 and accompanying text.
116. See United States v. Hayman, 342 U.S. 205, 219 (1952) (upholding the sufficiency of the statutory procedure).
117. See Fay v. Noia, 372 U.S. 391, 428-34 (1963).
118. See INS v. St. Cyr, 533 U.S. 289, 314 (2001).
119. For a study relied on by the majority in St. Cyr, 533 U.S. at 302 n.16, see Neuman, supra note 39, at 990-1004.
120. See Jordan Steiker, Incorporating the Suspension Clause: Is There a Constitutional Right to Federal Habeas Corpus for State Prisoners?, 92 MICH. L. REV. 862, 888-99 (1994).
121. Felker v. Turpin, 518 U.S. 651, 663-64 (1996).
122. But he did go on to say, citing Bollman, that the authority of a federal court to grant the writ must be given by written law, id. at 664;
123. "that judgments about the proper scope of the writ are 'normally for Congress to make,'" id.;
124. and that newly enacted statutory restrictions on successive petitions did not violate the Suspension Clause because they were "well within the compass of this evolutionary process," id.
125. (quoting Lonchar v. Thomas, 517 U.S. 314, 323 (1996)).
126. See St. Cyr, 533 U.S. at 342 (Scalia, J., dissenting) (criticizing the view that the Clause is a "one-way ratchet that enshrines in the Constitution every grant of habeas jurisdiction").
127. See supra note 30 and accompanying text.
128. See, e.g., Neuman, supra note 39, at 982-83;
129. Woolhandler, supra note 32, at 589-90 (discussing the status and nature of "inferior" courts);
130. see also Neuman, supra note 39, at 1020-59 (discussing the use of the writ to test the validity of executive detentions).
131. See HART & WECHSLER, supra note 10, at 1290 (noting the difference between cases where the committing authority was a court of general criminal jurisdiction and those where detention was not authorized by any court).
132. A proviso to § 14 of the Judiciary Act of 1789, ch. 20, 1 Stat. 73, 81-82, stated that the writ "shall in no case extend to prisoners in gaol, unless where they are in custody, under or by colour of the authority of the United States, or are committed for trial before some court of the same." Specific exceptions to this proviso were enacted before the Civil War, but expansion of the writ to encompass generally prisoners in state custody did not occur until 1867. Act of Feb. 5, 1867, ch. 27, 14 Stat. 385, 385. But see Steiker, supra note 59, at 888-99 (contending that the effect of the Fourteenth Amendment was to make the constitutional privilege of the writ applicable to those in state custody). Even if accepted, this argument may not guarantee a petitioner access to a federal court.
133. See HART & WECHSLER, supra note 10, at 1292.
134. See supra note 6 and accompanying text. The possible conflict between this proposition and the result in such decisions as Tarble's Case, 80 U.S. (13 Wall.) 397 (1872), is discussed supra note 17.
135. The question of a state's obligation to afford some sort of post-conviction process, other than direct review (when direct review was for some reason not an adequate alternative with respect to a particular federal claim), was presented but not decided in Case v. Nebraska, 381 U.S. 336, 337 (1965).
136. The question was posed in terms not of the reach of the Suspension Clause, but of the requirements of due process. Id. But as noted above at supra text accompanying note 18, the habeas remedy (or an adequate alternative) and the right of a detainee not to be deprived of liberty without due process are intertwined.
137. For the possible impact of such "anti-commandeering" decisions as New York v. United States, 505 U.S. 144 (1992), and Printz v. United States, 521 U.S. 898 (1997), on the question of the extent to which federal constitutional obligations may be imposed on state courts,
138. see HART & WECHSLER, supra note 10, at 451-53.
139. The Supreme Court has frequently recognized the authority of a federal court to grant a writ of habeas corpus in a particular case but has held that petitioner should (first, or instead) be required to resort to his remedies on direct review (including direct review by the Supreme Court itself). See, e.g., Tinsley v. Anderson, 171 U.S. 101, 104-05 (1898);
140. Whitten v. Tomlinson, 160 U.S. 231, 239-42 (1895);
141. see also United States v. Hayman, 342 U.S. 205, 214-19 (1952) (holding that the statutory remedy under 28 U.S.C. § 2255 had not been shown to be an inadequate alternative to a writ of habeas corpus).
142. In the important recent decision in Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2753-54 (2006)-an action involving petitions for mandamus and habeas corpus-the Court held, on certiorari review, that the Executive had exceeded its authority in establishing a military commission to try the petitioner (an alien in custody at Guantanamo Bay, Cuba) for certain crimes. The Court had to deal at the outset with a statutory provision, passed while the case was pending before it, providing that "no court... shall have jurisdiction to hear or consider... an application for... habeas corpus filed by... an alien detained... at Guantanamo Bay." 28 U.S.C.A. § 2241 (e) (West Supp. 2006). The majority, avoiding any constitutional issues, held as a matter of statutory construction that the provision did not apply to the case at bar. Hamdan, 126 S. Ct. at 2753-54. Justice Scalia, joined by Justices Thomas and Alito in dissent, argued that the provision did apply but concluded that it presented no problem under the Suspension Clause both because Guantanamo Bay was "outside the sovereign 'territorial jurisdiction' of the United States," id. at 2818,
143. and because the availability of direct federal court review after conviction (under other provisions of the DTA) constituted an adequate substitute for the writ, id. at 2818-19.
144. See, e.g., Henry v. Henkel, 235 U.S. 219, 228-29 (1914);
145. Ex parte Royall, 117 U.S. 241, 250 (1846). A related question-whether, in the absence of a valid suspension, special conditions may warrant the exercise of a court's discretion to deny the writ in favor of ex post remedies-is discussed by Kontorovich, Liability Rules, supra note 5.
146. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 87 (1977);
147. Glasgow v. Moyer, 225 U.S. 420, 430 (1912).
148. Much of what follows in this brief section is drawn from an excellent article by Professor Amanda L. Tyler, Is Suspension a Political Question?, 59 STAN. L. REV. (forthcoming Nov. 2006).
149. Seminole Tribe v. Florida, 517 U.S. 44, 55-56 (1996) (calling it a rule that since the "Eleventh Amendment and the broader principles that it reflects" play an important constitutional role, "Congress's intent to abrogate [states' sovereign immunity] must be obvious from a 'clear legislative statement'" (quoting Blatchford v. Native Vill. of Noatak, 504 U.S. 775, 786 (1991))).
150. See Hamdi v. Rumsfeld, 542 U.S. 507, 577-78 (2004) (Scalia, J., dissenting);
151. id. at 594 n.4 (Thomas, J., dissenting);
152. Ex parte Merryman, 17 F. Cas. 144, 151-52 (C.C.D. Md. 1861) (No. 9487) ("'It would seem, as the power is given to congress to suspend the writ of habeas corpus, in cases of rebellion or invasion, that the right to judge whether the exigency had arisen must exclusively belong to that body.'"
153. (quoting 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1336 (Boston, Little Brown & Co., 3d ed. 1858)));
154. Ex parte Bollman, 8 U.S. (4 Cranch) 75, 101 (1807);
155. STORY, supra, § 1342. The language used in some of these references-about an authority that is vested exclusively in the legislature-may have been intended to say only that the suspension power was not vested in the Executive, and thus may not have been addressed to the question of judicial review.
156. This argument would bring the issue within the scope of the political question doctrine. For a survey and analysis of this doctrine, see HART & WECHSLER, supra note 10. at 244-67.
157. See Tyler, supra note 72.
158. See Merryman, 17 F. Cas. at 152.
159. As noted in INS v. St. Cyr, 533 U.S. 289, 299 & nn.10-11 (2001), this issue is a strong candidate for a "clear statement" rule of the kind often imposed by the Court, especially when important constitutional interests are at stake. See, e.g., Gregory v. Ashcroft, 501 U.S. 452, 460-61 (1991);
160. Quern v. Jordan. 440 U.S. 332, 343 (1979).
161. Significantly, in the recent decision in Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), no Justice on the Court suggested that the provision of a 2005 statute that withdrew habeas corpus jurisdiction for aliens detained at
162. and the dissenters argued that the provision presented "no suspension problem" for reasons stated supra note 69, Hamdan, 126 S. Ct. at 2818 (Scalia, J., dissenting).
163. The leading example of such review is the famous decision in Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866), which is discussed more fully below, see infra text accompanying notes 95-100. See also Ekeland, supra note 48, at 1495-96, 1509;
164. id. at 1496 (noting that the Court in Milligan found that "'suspension of the privilege of the writ of habeas corpus does not suspend the writ itself'" (quoting Milligan, 71 U.S. at 130-31)).
165. On the Court's reluctance to get involved in questions involving the amending process, see Coleman v. Miller, 307 U.S. 433, 435-56 (1939)
166. and id. at 459, 469-70 (Black, J., concurring).
167. For a decision holding that the Constitution leaves to Congress the determination of how to authenticate that a bill has been passed, see Field v. Clark, 143 U.S. 649, 671-73 (1892).
168. And for a decision in which the Justices disagreed on whether and to what extent the question of compliance with the Origination Clause of the Constitution, art. I, § 7, cl. 1 (requiring revenue bills to originate in the House of Representatives), is subject to judicial review, see United States v. Munoz-Flores, 495 U.S. 385, 401 (1990) (Stevens, J., concurring);
169. id. at 408 (Scalia, J., concurring).
170. Consider, for example, the Court's treatment of the issue of standing to sue in United States v. Richardson, 418 U.S. 166, 176-78 (1974),
171. and the discussion of that case in Federal Election Commission v. Akins, 524 U.S. 11, 21-23 (1998).
172. The phrase "textually demonstrable constitutional commitment" was quoted and used in this context in Nixon v. United States, 506 U.S. 224, 228 (1993), which held nonjusticiable, for this and other reasons, a claim that the Senate had failed to comply with the requirements of the Impeachment Clause, art. I, § 3, cl. 6. Nixon, 506 U.S. at 237-38.
173. U.S. CONST, art. I, § 9, cl. 2.
174. Even if the question of suspension vel non in the face of an acknowledged rebellion or invasion is one vested entirely in the discretion of Congress, there may be limits on the extent of that discretion on such issues as the scope and duration of the suspension. Thus the very word "suspension" suggests limited duration. And a rebellion in a particular locality, such as Shays' Rebellion in Massachusetts-an uprising very much in the mind of the Framers, see Ekeland, supra note 48, at 1483-84 & nn.63-64-might not warrant a grant of authority to suspend the writ throughout the country.
175. For analogous discussion of "external" restraints (i.e., restraints external to the provisions of Article III) on legislative authority to limit the subject matter jurisdiction of the federal courts, see HART & WECHSLER, supra note 10, at 334-35.
176. For numerous examples, see Tyler, supra note 72.
177. The considerations relevant to the difficult question of the standard of review are discussed in detail in Tyler, supra note 72.
178. For an argument favoring a temporary and limited suspension of the writ for purposes of dealing with the war on terror, see Ekeland, supra note 48, at 1518.
179. Perhaps the explanation lies in the phrasing of the Suspension Clause when it speaks of "[t]he privilege" of the writ, but in any event, courts and commentators have assumed that an exercise of the suspension power does not itself bar a petitioner from seeking habeas corpus and, at a minimum, obtaining a determination of whether his case falls within the scope of the suspension. See e.g., Ex parte Milligan, 71 U.S. (4 Wall) 2, 130-31 (1866) ("The 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 right of proceeding any further with it.").
180. See Morrison, supra note 5, at 416.
181. See, e.g., id. at 427.
182. For discussion of this concept in the contracts context, see RESTATEMENT (SECOND) OF CONTRACTS § 359(1) (1981) and related commentary.
183. See Morrison, supra note 5, at 437.
184. Id. at 432
185. (citing DUKER, supra note 2, at 171 n.118;
186. ROBERT J. SHARPE, THE LAW OF HABEAS CORPUS 95 (2d ed. 1989)).
187. Pfander also notes the availability of other remedies as alternatives to habeas corpus and cites Wise v. Withers, 7 U.S. (3 Cranch) 331, 337 (1806), as an example of a case in which the Supreme Court allowed a suit for damages in trespass against the officer who took away the plaintiffs goods in order to enforce a criminal fine imposed by a court-martial that lacked jurisdiction to try and convict him.
188. See Pfander, supra note 5, at 500 n.13, 515, 525-37. (Note that habeas was unavailable in this case not because Congress had exercised its authority to suspend the writ but because the plaintiff was not in custody.)
189. 71 U.S. (4 Wall.) 2 (1866). In this case, Milligan, in his petition for a writ of habeas corpus, challenged the jurisdiction of a military tribunal to try an American citizen, living in Indiana, for conspiring to aid the Confederacy. Id. at 79-80.
190. Id. at 140.
191. Morrison. supra note 5, at 431 & n.121 (citing Milligan, 71 U.S. at 127).
192. Milligan, 71 U.S. at 136-37 (opinion of Chase, C.J.) The Chief Justice's separate opinion is not characterized in the official report, except as an opinion, and has been variously characterized by comentators. In my view, as explained in the text, it is a concurrence in the judgment, or result, but not in all of the reasoning of the majority.
193. Morrison, supra note 5, at 431 & n.121.
194. Id. at 434-37.
195. Id. at 437-40.
196. In the course of his discussion, Morrison draws an analogy to the famous distinction drawn by Calabresi and Melamed between property rules and liability rules. Id. at 439 n.150
197. (citing Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089 (1972)).
198. The authors of that article note that the availability of an injunctive remedy gives the property owner a right that is legally immunized from interference (and thus constitutes a "property rule"), Calabresi & Melamed, supra at 1092, while a damages remedy gives the owner only legal recourse to monetary compensation for harm resulting from the interference (and is thus a "liability rule"), id.
199. The habeas remedy, Morrison suggests, "is closer to a property rule than [to] a liability rule." Morrison, supra note 5, at 439 n.150.
200. Morrison argues that his approach, like that of Justice O'Connor (speaking for a plurality in Hamdi v. Rumsfeld, 542 U.S. 507 (2004)), has the virtue of allowing congressional authorization and judicial review to coexist, thus preserving a role for all three branches in a time of national crisis. Morrison, supra note 5, at 448-51.
201. (Justice O'Connor, in Hamdi, concluded that Congress's authorization of detention without trial of U.S. citizens deemed to be enemy combatants did not preclude judicial inquiry into such basic constitutional issues as the adequacy of the processes used to determine whether a detainee is in fact an enemy combatant. Hamdi, 542 U.S. at 524-39 (O'Connor, J., plurality opinion). Of course, as she noted, Congress had not taken any action to suspend the habeas writ. Id. at 536-37.)
202. Morrison, supra note 5, at 432-33.
203. As Morrison notes, discussion at the Constitutional Convention evidently did not touch on the question whether a suspension would constitute affirmative authorization of detention that would otherwise be unlawful. Id. at 433 n.131. But the implications of that fact are surely limited. Compare the implications of the Convention's relative silence on the question whether explicit authorization of suspension of the writ constituted tacit recognition that absent the conditions requisite to suspension, the privilege of the writ was affirmatively guaranteed as a matter of federal law. On that question, see supra discussion Part I.D.
204. Interestingly, Collings states that when Parliament enacted a suspension of the writ in England, causing the Habeas Corpus Act to cease to operate, the result was to "allow[ ] confinement without bail, indictment, or other judicial process." Collings, supra note 6, at 340.
205. Morrison, supra note 5, at 431
206. (citing Ex parte Milligan, 71 U.S. (4 Wall.) 2, 130-31 (1866)).
207. Id.
208. (citing Milligan, 71 U.S. at 106-07, 130-31).
209. Milligan, 71 U.S. (4 Wall.) 2. 137 (1866) (opinion of Chase, C.J.).
210. Id.
211. See 542 U.S. at 516-24 (O'Connor, J., plurality opinion). For a brief statement of Justice O'Connor's conclusions in Hamdi, see supra note 102.
212. See, e.g., Milligan, 71 U.S. at 118 (stating that the "controlling question in the case" was one of "jurisdiction" );
213. id. at 132 (opinion of Chase, C.J.) (acknowledging that the issue was one of jurisdiction).
214. In Hamdi, Justice Thomas, the only Justice addressing this issue, evidently agreed with Morrison: I do not see how suspension would make constitutional otherwise unconstitutional detentions ordered by the President. It simply removes a remedy. Justice Scalia's position might therefore require one or both of the political branches to act unconstitutionally in order to protect the Nation. But the power to protect the Nation must be the power to do so lawfully. Hamdi, 542 U.S. at 594 (Thomas, J., dissenting).
215. Note that Justice Thomas uses this point to argue in favor of inherent executive branch authority to detain independently of any implicit authorization accompanying a valid suspension of the writ, and whether or not the conditions for suspension exist. Id. at 580-94. This is a position I reject, and I'm sure Morrison does too.
216. Morrison, supra note 5. at 438-39
217. (citing Calabresi & Melamed, supra note 101).
218. Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 COLUM. L. REV. 857 (1999).
219. Id. at 887.
220. INS v. St. Cyr, 533 U.S. 289, 300-01 (2001); see supra text accompanying notes 41-43.
221. BLACKSTONE, supra note 11, at *133-34.
222. See supra note 18 and accompanying text.
223. BLACKSTONE, supra note 11, at *129.
224. Id. at *134 (emphasis omitted).
225. To be sure, Blackstone also referred quite briefly to several alternatives as remedies for "false imprisonment." See id. at *128, *138.
226. But each of the three rather archaic writs referred to (writs of "mainprize," "odio et atia," and "de homine replegiando") was of extremely limited value. See id. at *128-29.
227. And in his one paragraph (one sentence) discussion of an action in trespass for damages resulting from false imprisonment, id. at *138, he makes no reference to detention pursuant to the order of a government official, or to the question of when such detention may lead to liability in damages.
228. Id. at *134-38.
229. See DUKER, supra note 2, at 128-31 (noting that one point of concern expressed at the Convention with respect to the Suspension Clause-perhaps the principal point-was that since the power to suspend already existed in the states (or most of them), it was unnecessary and dangerous to give that power to Congress as well).
230. Congress has authorized suspension infrequently-during the Civil War (after the President's unilateral suspension of the writ); during Reconstruction; in the Philippines in the early twentieth century in the event of "rebellion, insurrection, or invasion" (a power exercised by the governor in 1905 with respect to a particular province, during a period of insurrection in that province); and in Hawaii under the Organic Act of 1900, when required by the "public safety" (a power exercised by the governor after the attack on Pearl Harbor in 1941). See Ekeland, supra note 48. at 1487 & nn.83-87.
231. For a full discussion of one compelling example of the need for such authorization and the use of delegated authority, see Lou Falkner Williams, The Constitution and the Ku Klux Klan on Trial: Federal Enforcement and Local Resistance in South Carolina, 1871-1872, 2 GA. J. S. LEGAL HIST, 41 (1993), describing the virtual overrunning of South Carolina by the Ku Klux Klan after the Civil War and the resulting mass arrests and detentions by government forces, acting pursuant to legislatively authorized suspension of the writ under the Ku Klux Klan Act, ch. 22, § 4, 17 Stat. 13, 14.
232. Morrison, supra note 5, at 435-36.
233. Id. at 43.3 n. 134.
234. Id.
235. For discussion of the complex issues presented by the questions of whether, when, and to what extent the Constitution itself may mandate the availability of at least one meaningful remedy for invasion, or threatened invasion, of a constitutional right, see HART & WECHSLER, supra note 10, at 795-804, 823-25.
236. 411 U.S. 475 (1973).
237. Id. at 489-91.
238. The most significant of the later cases is Heck v. Humphrey, 512 U.S. 477 (1994).
239. Among the most important hurdles that a habeas petitioner must surmount are the requirement of exhaustion of state remedies, see 28 U.S.C. § 2254(b)(1)(A) (2000), and a one-year statute of limitations, see id. § 2244(d)(1).
240. The Court has yet to determine whether the Preiser line of cases bars remedies other than habeas for one who was convicted but not imprisoned (and thus was never eligible for habeas relief), or who was imprisoned but who since has been unconditionally released (and thus is no longer eligible for habeas relief). See Muhammad v. Close, 540 U.S. 749, 752 n.2 (2004). (In neither case, of course, is the habeas remedy unavailable because of a valid suspension of the writ.)
241. I believe that Pfander asks a different question-whether the unavailability of the writ for reasons not involving a valid suspension precludes the use of other remedies, and concludes that it does not. Pfander, supra note 5, at 525-26.
242. (He gives as an example a case in which the writ is unavailable because the relevant statute does not confer territorial jurisdiction on American courts to grant habeas relief to a petitioner detained beyond our borders. See id. at 525.) To the extent that such a withdrawal of jurisdiction is not based on premises that warrant, and render constitutionally valid, the denial of any judicial remedy to a petitioner, I agree with this conclusion. But I view the exercise of the power to suspend as significantly different. (Indeed the sensible rule, articulated by the Court in United States v. Hayman, 342 U.S. 205, 205 (1952), that an adequate alternative defeats a Suspension Clause claim itself suggests that a valid suspension defeats the argument for an alternative remedy.) Similarly, the thesis advanced by Kontorovich-that in the context of a mass detention, the federal courts may find it appropriate to allow an ex post (damages) remedy but not an injunctive one-assumes that there has not been a legislative suspension of the writ.
243. Kontorovich, Liability Rules, supra note 5, at 759.
244. Indeed, Kontorovich expressly states that his proposal "would not require a suspension of habeas corpus." Id. at 792 n.119. This footnote may imply that a damages remedy would still be available if the writ were suspended, but the issue is not discussed.
245. Hamdi v. Rumsfeld, 542 U.S. 507, 579 (2004) (Thomas, J., dissenting); see supra note 112.
246. Pfander, supra note 5, at 594.
247. Hamdi, 542 U.S. at 579 (Thomas, J., dissenting).
248. Nor was this authority limited, in his view, to the need to take emergency action until Congress had an opportunity to legislate. Id. at 583-84.
249. 71 U.S. (4 Wall.) 2 (1866).
250. Id. at 130-31.
251. See supra Part I.E.
252. Claims of improper treatment during detention might range from allegations of physical abuse to denial of access to counsel, and the validity of any such claims would depend on factors independent of the authority conferred by legislation pursuant to the Suspension Clause. For example, a prisoner might complain (if in state detention, under 42 U.S.C. § 1983, or if in federal detention, under Ex parte Young, 209 U.S. 123 (1908), and/or Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)) of treatment allegedly in violation of the Eighth Amendment. If successful, he might be entitled to injunctive or declaratory relief with respect to the treatment, or to damages for the harm caused by it, but not to release from detention. Moreover, in circumstances akin to those described by Kontorovich, where courts were inundated with complaints of maltreatment in connection with mass detentions resulting from a national emergency, the courts, with or without legislative authorization, and quite apart from the suspension of the habeas writ, might properly choose to restrict the remedies available to ex post relief (e.g., a Bivens damages remedy). Kontorovich, Liability Rules, supra note 5, at 781-82.
253. For example, such relief could be sought by a petition for a writ of mandamus or prohibition, or as suggested supra note 94, might in some circumstances be limited to ex post relief of the type recognized in Wise v. Withers, 7 U.S. (3 Cranch) 331 (1806). See generally Pfander, supra note 5, at 525-37 (discussing "nonstatutory" review).
254. Remedies for unlawful conviction other than habeas corpus include direct review (on appeal) and the writ of caram nobis. The Supreme Court has several times indicated that there is no constitutional right to direct appeal-see, for example, McKane v. Durston, 153 U.S. 684, 688-89 (1894).
255. But-as noted in CHARLES H. WHITEBREAD & CHRISTOPHER SLOBOGIN, CRIMINAL PROCEDURE § 29.01, at 810-11 (4th ed. 2000)-the constitutional status of denial of all review of a criminal conviction has never been squarely addressed, and in view of the general availability of appeal as of right, probably never will be. With respect to the use of the writ of coram nobis to challenge the lawfulness of a conviction,
256. see, for example, United States v. Morgan, 346 U.S. 502, 505-06 (1954);
257. Hirabayashi v. United States, 828 F.2d 591, 594 (9th Cir. 1987).
258. An important decision bearing on this argument is Wilkinson v. Dotson, 544 U.S. 74 (2005). In that case, prisoners, in actions brought under 42 U.S.C. § 1983, challenged the validity of parole proceedings on grounds that, if successful, would result not in release but only in new parole hearings. Id. at 76-77.
259. The Court held the Preiser line of cases, see supra note 128 and accompanying text, inapplicable to preclude action under § 1983 because the proceedings at bar (even if they could be brought as petitions for habeas corpus) did not go the "core" of the habeas remedy: the relief sought did not include a request for immediate or speedier release, nor would success "necessarily imply" the invalidity of the convictions on which the detentions were based. Wilkinson, 544 U.S. at 81. The case is relevant here because it underscores the fact that the modern habeas remedy has expanded well beyond the "core" to which I believe the Suspension Clause refers. As for the Court's reference to the use of a habeas proceeding to establish the invalidity of a conviction, I believe that this use only goes to the core of the remedy when the detention itself cannot be legally defended on any other ground. And if a valid legislative suspension of the writ authorizes any detention within its scope, whether or not the detainee has been tried and convicted, that condition is not met. (Nor would it be met in such circumstances by a challenge to the jurisdiction of a tribunal set up to adjudicate a criminal charge against the detainee.)
260. The significance of detention (or imprisonment or custody) as both the basis of jurisdiction and the question at issue on a petition for habeas corpus has been stressed throughout this Article. It is evident not only in the jurisdictional requirement that the petitioner be in custody but in the analysis of the writ in the writings of Blackstone, see supra note 120, and other jurists and commentators,
261. see, for example, Clarke D. Forsythe, The Historical Origins of Broad Federal Habeas Corpus Review Reconsidered, 70 NOTRE DAME L. REV. 1079, 1087 (1995) (describing the writ as requiring a showing of "sufficient legal cause for detaining or jailing"), as well as in many judicial opinions,
262. see, for example, Fay v. Noia, 372 U.S. 391, 430 (1963) (referring to the jurisdictional prerequisite for habeas as "detention simpliciter"); In re Medley, 134 U.S. 160, 173 (1890) (noting that traditionally, habeas corpus is a remedy only for wrongful commitment and that the traditional form of relief has therefore been discharge from prison).
263. See supra note 127 and accompanying text.
264. Of the three significant Japanese-American interment cases in the Supreme Court, two (Korematsu v. United States, 323 U.S. 214 (1945), and Hirabyashi v. United States, 320 U.S. 81 (1943)) arose on direct review, and affirmed the petitioners' criminal convictions. Only the third, Ex parte Endo, 323 U.S. 283 (1944), discussed infra note 145, involved a haheas corpus petition. There have been many studies of the internment of Japanese-Americans during World War II. For one of particular contemporary' interest, because of its effort to relate that experience to the current internment of persons deemed to be enemy combatants, see Jerry Kang, Watching the Watchers: Enemy Combatants in the Internment's Shadow, LAW & CONTEMP. PROBS., Spring 2005, at 255, at 264-78.
265. In Ex parte Endo, the Supreme Court held that a writ of habeas corpus should be granted to the petitioner, a loyal citizen of Japanese descent who was being held in a relocation center. Endo, 323 U.S. at 305-06. No argument was made by the Government in this case that there was any applicable Act of Congress suspending the writ.
266. Ex parte Milligan, 71 U.S. (4 Wall) 2, 140 (1866).
267. See supra notes 138-41 and accompanying text.
268. Hamdi v. Rumsfeld, 542 U.S. 507 (2004); see supra note 102.
269. As advocated in Ekeland, supra note 48, at 1517-19.
270. If, as is likely, any Act suspending the writ would be limited to enemy combatants, or persons meeting a similar description, a court on a habeas petition would be entitled to consider the question of the detainee's status in order to determine whether the Act applied under its own terms. This approximates the actual result in the case.