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Jails without judges


The U.S. government cannot jail a citizen without a judge’s approval “unless,” as the so-called suspension clause puts it, “when in Cases of Rebellion or Invasion the public Safety may require it.” So stipulates the Writ of Habeas Corpus, enshrined in the U.S. Constitution.
“[M]any scholars consider habeas corpus as a tool of liberty in the fight against governmental oppression,” notes political scientist Cary Federman in The Body and the State: Habeas Corpus and American Jurisprudence (2006). “Variously called ‘the great writ of liberty,’ a ‘human right,’ and ‘a bulwark and ‘palladium’ of English liberties, the ancient writ of habeas corpus has achieved a status in American jurisprudence that has surpassed even those rights deemed by the United States Supreme Court to be ‘preferred’ or ‘fundamental,’ such a free speech and the right to privacy.”
Despite this powerful historical and legal claim, the Bush administration and others have argued that the threat posed by terrorism is reason enough to invoke the suspension clause and permit the jailing of terror suspects without judicial review.
While the subject certainly has captured its share of attention on legal and political circles—see, for example, here and here and here—there has not been much public awareness or discussion of what is at stake in suspending habeas corpus.

I suspect part of the reason for the public quietude is that while the principle is clear, the details quickly get complicated. Moreover, those detainees who have not gone before an American judge are people about whom we know little (if we even know who they all are), and it may therefore be difficult for many of us to imagine ourselves in their situation.
Or perhaps the public does understand the stakes for individual liberty perfectly well, but they have greater sympathy for the situation of those authorities who would deny certain individuals recourse to a writ of habeas corpus.
In either case, even if most citizens do not know about or care about the constitutional issue, shouldn’t there be stories in our literature that capture the stakes? And wouldn’t that fiction function as parables to highlight the conflict between security and liberty?
Last spring, over at the blog for the Campaign for the American Reader, I initiated a call for suggestions for stories that would fit the bill.
I asked: what is a good novel that illustrates what life is like when the sovereign/king/president is not subject to the constraints of habeas corpus? What is like when the executive authority does not have to explain to a judge why it has someone in prison?
Or, what’s a good novel about how things can go horribly wrong precisely because the executive is constrained by habeas corpus? What are the circumstances that make it necessary for the executive to not risk having a judge say a detainee must be released? (Storylines that answer these latter two questions abound in television—see, for example, many episodes of 24 or Alias.)
I received many interesting suggestions. A few were obvious, yet for that reason also among the better parables about the nightmare of a society that does not protect basic liberties. Pete Anderson nominated “Franz Kafka’s The Trial, which unforgettably shows how an innocent man can be unfairly persecuted by a totalitarian state.” Others wrote to suggest Darkness at Noon, which Mary Thornberry of Davidson College called “a vivid picture of what happens when the state is allowed to imprison people without challenge. Even the most loyal supporters are not immune from the state’s oppression.”
Deborah Klosky nominated The Fixer, by Bernard Malamud, a novel (based on a true story) “about a Jew who is imprisoned and awaits trial on a false ritual murder charge brought by officials of Tsarist Russia.”
The legal scholar Jonathan Hafetz proposed Alexander Solzhenitsyn’s One Day in the Life of Ivan Denisovich, which “recounts one day in the life of a man unjustlfy imprisoned for treason during World War II. A simple peasant, Denisovich’s ‘crime’ was escaping from the Germans who had captured him and returning to his own side.”
Robert A. Ferguson, George Edward Woodberry Professor in Law, Literature and Criticism at Columbia Law School, came up with one of my favorite suggestions: the short story “The Man Without A Country,” by Edward Everett Hale, which happens to be “the most popular story of the second half of the nineteenth century…. Philip Nolan is kept in perpetual prison aboard ship because bureaucracy and governmental policy want to forget about him after his original sentence. Moreover, the whole story is wrapped in patriotic rhetoric of the kind that is being misused today.” That is, the reading we give the story today is ironical—the take-away being precisely the opposite of how one would have naturally read it when it was written.
Examples of stories that showed the necessity of jailing suspects beyond the reach of judges were harder to come by. Michael Crittenden suggested that Frederick Forsyth’s The Day of the Jackal might be one such novel. University of Iowa law professor Tung Yin nominated Robert Littell’s The Company, a novel about the CIA in which there is a mole hunt that, Yin argues, “captured the essence of the problem of indefinite detention without access to counsel or courts via habeas corpus.”
I decided to read The Company—a doorstop of a novel at almost 900 pages—for myself to see how well it captured the issue. Does it really portray a realistic scenario wherein national security would be imperiled if the suspected double agent were allowed an attorney to plead his case before a judge?
Perhaps, but the real problem with the story/scenario is that our courts do seem capable of prosecuting suspects where national security secrets can be protected. Moreover, without spoiling the plot here, I strongly suspect that, had the suspected mole been accorded his constitutional rights, the courts would have done better at delivering both justice and national security protections than did the CIA’s extra-judicial measures.
How about you? Do you know of a work of fiction that illustrates what’s at stake in the debate over habeas corpus? My email address is to the right: send me your suggestion.

Share  Posted by mzeringue at 1:52 PM | Permalink

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