Habeas Corpus in Wartime

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New in Paperback

Habeas Corpus in Wartime

From the Tower of London to Guantanamo Bay

Amanda L. Tyler

Presents a comprehensive account of the legal and political history of habeas corpus in wartime in the Anglo-American legal tradition
Traces the origins of the privilege of the writ of habeas corpus in English law, while focusing on the English Habeas Corpus Act of 1679
Explores the circumstances that led Parliament to invent the concept of suspension to set aside the protections of the Habeas Corpus Act in wartime
Focuses on how the English suspension framework greatly influenced the development of early American habeas law
Details how both the privilege and the concept of suspension have been understood over the course of American history
Reveals how the challenges posed by modern warfare during World War II and the War on Terror placed considerable strain on longstanding conceptions of the privilege and the role of suspension
Explores many important questions that come up today regarding the Suspension Clause and related matters, such as martial law and the use of military tribunals in wartime
Analyzes the role of the courts in protecting the constitutional privilege of the writ of habeas corpus and how the Supreme Court failed to do so during World War II and the War on Terror

New in Paperback

Habeas Corpus in Wartime

From the Tower of London to Guantanamo Bay

Amanda L. Tyler

Description

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.

New in Paperback

Habeas Corpus in Wartime

From the Tower of London to Guantanamo Bay

Amanda L. Tyler

Table of Contents

Acknowledgements

Introduction

Part I: Origins: The Privilege of the Writ of Habeas Corpus and Suspension in English Law

Chapter 1: The Making of the Privilege

Chapter 2: Suspension: Legislating an Emergency Power

Chapter 3: Rebellion and Treason

Part II: Incorporating the Privilege and Suspension into American Law

Chapter 4: Forging a New Allegiance

Chapter 5: Enshrining a Constitutional Privilege

Chapter 6: The Suspension Clause in the Early Republic

Part III: Suspension

Chapter 7: Civil War and the "Great Suspender"

Chapter 8: Liberty in the Shadow Constitution: Suspension and the Confederacy

Chapter 9: Reconstructing the Union and Suspending in the Name of Civil Rights

Part IV: The Forgotten Suspension Clause

Chapter 10: World War II: Suspension and Martial Law in Hawaii and Mass Detention of Japanese Americans on the Mainland

Chapter 11: Habeas Corpus Today: Confronting the Age of Terrorism

Conclusion

Notes

Index

New in Paperback

Habeas Corpus in Wartime

From the Tower of London to Guantanamo Bay

Amanda L. Tyler

Author Information

Amanda L. Tyler is a Professor of Law at the University of California, Berkeley School of Law, where she teaches and writes about the federal courts, the Supreme Court, constitutional law, legal history, and civil procedure. Professor Tyler's scholarship has been published in leading law journals, including the Harvard Law Review, the Yale Law Journal, and the Stanford Law Review. She also serves as a co-editor of Hart and Wechsler's The Federal Courts and the Federal System. Professor Tyler is a graduate of Stanford University and Harvard Law School. Following law school, she served as law clerk to the Honorable Guido Calabresi at the United States Court of Appeals for the Second Circuit and the Honorable Ruth Bader Ginsburg at the Supreme Court of the United States. She has run eight Boston marathons.

New in Paperback

Habeas Corpus in Wartime

From the Tower of London to Guantanamo Bay

Amanda L. Tyler

Reviews and Awards

"In Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay, Amanda Tyler undertakes "to lay out as comprehensively as possible the full story of the legal and political history of the constitutional privilege of the writ of habeas corpus." She does so with care and style ... Well into the 20th century, as Tyler painstakingly documents, the consensus understanding remained consistent: '[T]he origins and long-standing interpretation of the Suspension Clause understood it to prohibit the government, in the absence of a valid suspension, from detaining persons who can claim the protection of domestic law outside the criminal process, even in wartime.' Even in wartime. Especially in wartime." -- Helen Norton, Jotwell

"Amanda Tyler has written the definitive political and legal history of the writ of habeas corpus during war, from its modern origins in the seventeenth century England to its contemporary use by U.S. courts to check the Commander in Chief in the post-9/11 era. Since the writ's history is so relevant to its modern scope, Habeas Corpus in Wartime will be an indispensable guide for lawyers, judges, and scholars of various stripes who grapple with the meaning of the Great Writ." - Jack Goldsmith, Henry L. Shattuck Professor of Law, Harvard Law School

"This meticulously researched book shows how America's Founding Fathers constitutionalised the English Habeas Corpus Act, which provided that only parliament could suspend the writ of liberty. In a series of studies which are rich both in illustration and insight, Amanda Tyler shows how the long-held understanding of the Suspension Clause came under pressure in the twentieth century. The history she has written is not only fascinating in itself, but has important ramifications for contemporary debates on liberty and the constitution." - Michael Lobban, Professor of Legal History, London School of Economic

"In this carefully researched book, Amanda Tyler provides a comprehensive history of the complicated ways in which Americans have used-and sometimes abused-the 'great writ' of habeas corpus in times of war or national emergency. Tyler traces this story to its English origins, which Americans studied closely. But more important, she provides a searching account of the controversies that have surrounded the suspension or evasion of habeas corpus, from the American Revolution to our own post-September 11 era." - Jack Rakove, Professor of History and Political Science, Stanford University

"In her expansive, intensive, and highly readable exploration of the history of the 'Great Writ' in times of crisis, Professor Tyler has illuminated the past and informed the present understanding of the critical role of habeas corpus as a bulwark against the abuse of power. Her in-depth, original study of Anglo-American materials helps foster an appreciation of the prominent place of the writ in state and federal constitutions." - David L. Shapiro, William Nelson Cromwell Professor of Law, Emeritus, Harvard Law School

"As colonists, as revolutionaries, and as an independent people, Americans have always revered the English writ of habeas corpus. Professor Tyler tells a tale that is sometimes heartening, more often distressing, yet always illuminating. No one has offered a better exposition of the Constitution's Suspension Clause and of American struggles in wartime to define our most basic liberty: freedom from wrongful detention." - Paul Halliday, Julian Bishko Professor of History & Professor of Law, University of Virginia

"We owe Tyler a considerable debt for clarifying the interaction of habeas, treason, allegiance, preventive detention, martial law and trial by military commission; her careful study illuminates much that was previously obscure. Modern legal scholars and federal judges will turn confidently to Tyler on Habeas in much the way nineteenth century jurists invoked Story on the Constitution. As with any progressive account of constitutional history, we're left to wonder how much work history can do in answering the constitutional questions of today. But history gives us an entry point for our assessment, revealing practices and meanings that were both embedded in and layered upon constitutional texts. Having completed one extraordinary historical marathon, Tyler shows every sign of being able to tackle several more. We turn the last page of this magnificent book and find ourselves looking forward to Tyler's next."- Professor James E. Pfander, Lawfare

"Professor Tyler focuses on the role that habeas corpus and its suspension have played in English and American wars since the 17th century. Her definitive history establishes that the notion that American citizens can be detained for a lengthy period without a criminal charge or a suspension of the writ was invented in the 20th century and is totally at odds with the Framers' view."- Gerard N. Magliocca, Balkinization

"Professor Amanda Tyler offers a searing look at episodes in U.S. history when the federal government undermined its citizens' legal rights during times of war... Her critique reveals an incremental breakdown of habeas corpus, starting with the American Revolution and continuing through the war on terror."- Susan Gluss, BerkleyLaw