Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay (Introduction)

Amanda L. Tyler, Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay (Oxford University Press 2017)

19 Pages Posted: 7 Dec 2017

See all articles by Amanda L. Tyler

Amanda L. Tyler

University of California, Berkeley - School of Law

Date Written: December 1, 2017

Abstract

Habeas Corpus in Wartime unearths and presents a comprehensive account of the legal and political history of habeas corpus in wartime in the Anglo-American legal tradition. The book begins by tracing the origins of the habeas privilege in English law, giving special attention to the English Habeas Corpus Act of 1679, which limited the scope of executive detention and used the machinery of the English courts to enforce its terms. It also explores the circumstances that led Parliament to invent the concept of suspension as a tool for setting aside the protections of the Habeas Corpus Act in wartime. Turning to the United States, the book highlights how the English suspension framework greatly influenced the development of early American habeas law before and after the American Revolution and during the Founding period, when the United States Constitution enshrined a habeas privilege in its Suspension Clause. The book then chronicles the story of the habeas privilege and suspension over the course of American history, giving special attention to the Civil War period. The final chapters explore how the challenges posed by modern warfare during the twentieth and twenty-first centuries have placed great strain on the previously well-settled understanding of the role of the habeas privilege and suspension in American constitutional law, particularly during World War II when the United States government detained tens of thousands of Japanese American citizens and later during the War on Terror. Throughout, the book draws upon a wealth of original and heretofore untapped historical resources to shed light on the purpose and role of the Suspension Clause in the United States Constitution, revealing all along that many of the questions that arise today regarding the scope of executive power to arrest and detain in wartime are not new ones.

Keywords: habeas corpus, executive detention, courts in wartime, emergency constitution

Suggested Citation

Tyler, Amanda L., Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay (Introduction) (December 1, 2017). Amanda L. Tyler, Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay (Oxford University Press 2017). Available at SSRN: https://ssrn.com/abstract=3077743

Amanda L. Tyler (Contact Author)

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

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