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New Book Tracks History of Habeas Corpus in America

By Robyn Hagan Cain | Last updated on

Habeas corpus. It seemed so important in law school — those halcyon days when you thought you would spend your career fighting for civil liberties — but years of bankruptcy/M&A/insurance defense/family law hearings make habeas irrelevant to most lawyers. For many of us, habeas corpus remains a lofty principle rather than a part of practice.

(Because the U.S. government doesn’t just lock an American up for months without due process, right?)

After 9/11, lawyers and policy makers began debating whether the standard rights of the accused, including habeas, should apply to suspected terrorists. An increasingly vocal segment of the population championed the idea that national security trumped civil liberties. Anthony Gregory, a Research Fellow at the Independent Institute, was troubled by post 9/11 detention policy — particularly the 2006 Military Commissions Act and activity at Guantanamo — so he set out to write a policy paper on habeas corpus.

That paper turned into the sweeping tome he published in April, The Power of Habeas Corpus in America.

(Sidebar: The book is getting great reviews. Fox News Analyst Judge Andrew Napolitano says it "reduces 400 years of Anglo-American legal and political history to a readable, thorough, compelling study of this natural and constitutional right" and predicts that it "will soon become the bible on all things habeas corpus for generations." High praise indeed.)

We recently caught up with Gregory to discuss his research tracking the writ's historical controversies from medieval England to modern America, and learned that the history of habeas is both messy and paradoxical.

One repeating theme I discovered is that one day's habeas champions often become the next day's cynics -- from Parliament to the Reconstruction Congress and from Thomas Jefferson to Barack Obama, we see radical proponents of habeas work to restrict it when they come to power and it gets in the way.

Since most of us agree that an accused person should receive some form of due process, how is it that we continue to see habeas rights erode? Gregory blames our political culture, which supports broad executive detention powers as well as an enormous domestic prison system. "Habeas corpus can never effectively remedy but a small fraction of unjust detentions so long as the federal and state governments, with public support, detain so many people. No simple reform can fix this."

If you're finished with Reading Law and My Beloved World, and are ready to learn how habeas corpus is "simultaneously under-appreciated for its potential and over-celebrated in its actual power," pick up at copy of The Power of Habeas Corpus.

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