The Formerly Great Writ
Goodbye, habeas corpus. Hello, executive detention.
Tucked into the renewal of the Patriot Act, which Congress will reconsider in December, is an unrelated provision that would make it harder for American prisoners to challenge their convictions in federal court. Congress may also soon vote to limit the rights of foreign detainees in Guantanamo Bay to apply to federal court.
What's driving the effort to close off federal courts from prisoners? Have prisoners been exploiting legal loopholes to cut short their sentences? Hardly. The number of federal appeals brought by prisoners—and the success rate of those appeals—has steadily dropped for the last five years. Federal judges themselves decided as a body to oppose the current efforts in Congress to cut back further on prisoners' appeals.
Still, some lawmakers are determined to bend the courts to their will. If they really get their way, they'll eviscerate the centuries-old right of habeas corpus review as we know it—leaving all of us increasingly subject to the unilateral power of executive detention. Why stop with Jose Padilla or Ali Saleh Kahlah al-Marri if Congress is ready to let prosecutors lock up anyone and keep them there?
Habeas corpus, the Great Writ, dates from 1305 and the reign of King Edward I in England. It allows detainees to ask a court to order their warden to explain the basis for their detention. (The Latin, translated as "you have the body," refers to the warden's powers.) Detainees can petition for habeas review if they are held without trial, or if they're convicted and claim that their constitutional rights were violated at trial. Habeas is the means by which state prisoners, on rare occasion, can be heard in federal court.
In 1969, the Warren Court called the writ "the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action." But by the 1980s, the Rehnquist Court was grumbling about "abuse of the writ." Former Chief Justice William Rehnquist objected that death-row inmates were bringing appeal after appeal to drag out their cases and argued that habeas review encouraged federal judges needlessly to second-guess state courts. He didn't have much evidence. But he convinced a majority of his colleagues to limit the writ. In 1989 in Teague v. Lane, for example, the court excluded habeas claims based on new constitutional rules of civil procedure; in other cases the justices whittled away at prisoners' rights to file successive habeas petitions.
Congress took its own shot at habeas in 1996. A law passed that year and signed by President Bill Clinton made it harder for federal courts to grant relief to a habeas petitioner. As prisoners raced to meet a newly imposed deadline, the number of habeas petitions spiked. But when that deadline passed, filings began to fall. According to Cornell law professor John Blume, only 14 out of every 1,000 inmates filed habeas petitions in 2004, down from 18 per 1,000 five years earlier. And of those applicants, only a tiny fraction succeeded. Federal courts granted relief last year in just 4 percent of capital cases and .45 percent of all cases.
Despite these small numbers, Congress is now poised to attack habeas on two fronts. The original version of the bill relating to the Guantanamo detainees proposed to block hundreds of pending Guantanamo cases from reaching court—including one, brought by Salim Ahmed Hamdan, that the Supreme Court accepted last month for review. A compromise bill with bipartisan support—it's being offered by Sen. Lindsey Graham, R-S.C., and Sen. Carl Levin, D-Mich.—appears to leave some of those cases alone. It's better than the original draft, which Graham sponsored on his own. But it still takes away rights relative to the status quo. While the bill appears to leave some of the pending habeas appeals, future detainees would get no habeas corpus. And to get to federal court at all, detainees first have to have a hearing before a military tribunal—a requirement that has already allowed the government to keep anyone it wished in limbo for years.
As for the habeas rights of run-of-the-mill criminal defendants, the proposed revision to the Patriot Act would take from the federal courts, and give to the attorney general, the authority to decide that a state has a system for providing "competent counsel" for death-row prisoners. A state that is so designated may then speed up and limit federal habeas review of its death-row cases. If Congress lets the country's chief prosecutor decide which states qualify, then legislators would be shoving the courts out of the way precisely because they are a neutral arbiter with an institutional concern about procedural fairness.
These are not the only congressional challenges to habeas this fall. Senate and House Judiciary committees have been considering measures that would bar from federal court defendants who make the slightest procedural error, even though in nearly every case such a mistake is not the prisoner's but the lawyer's fault. The National Judicial Conference, the lobbying arm of the federal judiciary, strongly opposes the anti-habeas measures.
For right-wing lawmakers and prosecutors, the federal courts are sometimes an irritant. Though the ranks of the judiciary are increasingly conservative, the courts can't always be relied on to do the bidding of the president or of prosecutors. That, of course, is what the courts are for. The Constitution insulates judges from partisan politics to ensure that they will be free to safeguard the rights of the powerless. At his confirmation hearings in September, Chief Justice John Roberts said, "If the Constitution says that the little guy should win, the little guy's going to win in court before me." But if Congress has its way, the little guy will never get into the courtroom.
Emily Bazelon is a Slate senior editor and writes about law, family, and kids. Her forthcoming book, Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Empathy and Character. Find her at email@example.com or on Facebook or Twitter.
Photograph of Jose Padilla courtesy Agence France-Presse/Getty Images.