Common-Law Habeas and the Separation of Powers

Abstract

This short essay is a response to Professor Azmy's article on Executive Detention, Boumediene, and the New Common Law of Habeas, which provides a comprehensive overview of the new procedural, evidentiary, and substantive rules that the D.C. district court has fashioned in Guantanamo habeas cases in the two years since the Supreme Court's decision in Boumediene.

In recent weeks and months, increasing criticisms have emerged questioning not only the results the D.C. District Court has reached in individual cases but also the practical feasibility and normative desirability of the entire post-Boumediene project. Even a Brookings Institution report purporting to offer a neutral analysis of the district court’s jurisprudence in the post-Boumediene cases noted the report's authors' "significant concerns about the habeas process as a lawmaking device." To be sure, many of the criticisms have been directed at Congress and its purported irresponsibility in leaving such momentous questions of individual rights and national security for courts to pass upon in the first instance. But some critics have gone out of their way to question whether, even in the absence of legislative intervention, the courts have still overstepped their bounds, as typified by Judge Janice Rogers Brown's concurring opinion in al-Bihani v. Obama, which argues that the "new common law of habeas" that Professor Azmy so richly describes is in fact an inappropriate exercise of judicial power and one the courts should refrain from pursuing.

This essay aims to put Professor Azmy’s descriptive work - with which I have no quarrel - on firmer prescriptive foundations. In particular, I argue that what he describes as the "new common law of habeas" is in fact just a new variation on an old theme: that, well into the twentieth century, the law of habeas corpus in the United States was, almost entirely, a set of judge-made substantive, procedural, and evidentiary rules. Indeed, even after the Supreme Court in Erie famously eschewed general federal common law, it continued to articulate judge-made principles to govern virtually every aspect of federal habeas litigation, only moving away from this trend in cases decided after 1948, when Congress first started to legislate more specifically in the habeas context.

More than just historical fortuity, this essay demonstrates that the effectively common-law nature of habeas corpus is a product of its unique constitutional status - protected except in the most extreme circumstances by the Suspension Clause, one of only two remedies guaranteed by the Constitution. Even though the federal courts all but depend on legislation for their existence, the writ does not. Mirroring the pre-revolutionary English experience, the Framers intended to provide a permanent constitutional protection for individual rights by protecting the role of the courts in detention cases - a protection that would be utterly meaningless if it turned in any way on popular will and/or legislative whim.

Keywords: Habeas, Guantanamo, Terrorism, Common Law, Separation of Powers, Boumediene