True Writ


A celebrated declaration is engraved above the portal of Langdell Hall, the central building of Harvard Law School: non sub homine sed sub deo et lege (“not under man but under God and law”). That was the brave admonition of Lord Edward Coke (1552–1634) to King James I when the monarch imprisoned one of his subjects peremptorily. The old judicial remedy for such misconduct by the chief executive was a special form of the writ known as habeas corpus (literally, “have the body”).

A state committed to the rule of law must, of course, grant a remedy for wrongful arrest and confinement. When the framers of the U.S. Constitution met in Philadelphia in 1787, habeas corpus procedure was already confirmed by an English statute of 1679 and the Massachusetts Constitution of 1780. The new federal Constitution consequently declared that the “privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Plainly, the Great Writ (as it came to be called) was familiar practice, not a creature of the Constitution but protected by it, and specifically authorized by the first statute enacted by Congress in 1789 to empower federal courts.

Although often invoked by prisoners jailed in state institutions who claim unconstitutional confinement, since 9/11 the writ has been sought repeatedly by detainees held at Guantánamo. To deal with the extraordinary spectacle of petitions emanating from an American naval base on the island of Cuba, authority has been granted to federal courts in Washington, D.C., to decide whether specific applications have merit. While the Supreme Court has approved such petitions, a price has been paid: historic judicial procedures have been distorted.

Lord Thomas Macaulay, in his History of England (1848), wrote of the Star Chamber, abolished in 1641, as an “unconstitutional” court. The partial secrecy of its proceedings was among its offenses. Modern judges consequently dispose of cases with written findings of fact and conclusions of law set out in opinions available to the public and to the press. This helps ensure we are at least governed sub lege (if not sub Deo).

The habeas petitions from Guantánamo, however, present a problem of secret adjudication in new form. For the government may claim that a response to the petition requires disclosure of information that it regards as secret. The government may be entitled to the protection of such information, and a court may well agree. The upshot has been the appearance in recent court opinions of bizarre judicial texts.

Consider the decision in Latif, decided last October by a federal appeals court in Washington, D.C. Adnan Latif, a Yemeni, was seized by Pakistani authorities in 2001 and soon transferred to Guantánamo. He filed a petition for habeas corpus with the federal district court in D.C. The government responded with the claim that Latif was a member of Al Qaeda, and it submitted secret documentary proof to that effect. The district judge ruled the evidence insufficient, but a majority of the appeals court disagreed. Both courts sprinkled their opinions with the phrase “text redacted by the court.” More than fifty such redactions appear in the forty-one-page opinion of the district judge, with a similar number in the opinion of the appeals court. Judges, but not the public, were permitted to see the critical evidence, disabling the bar, the press, the academy, and the rest of us from deciding whether justice was done.

The suspicion that the government may exaggerate the danger of disclosure of “secret” documents is not unfounded: recall the government’s indiscreet zeal for secrecy in the Pentagon Papers case. What is more, by rule, courts “presume” that government documents are correct—that is, the opposing party must demonstrate the absence of a security risk—so that claims of security are favored.

There are doubtless documents of high confidentiality involved in some Guantánamo cases that, if broadcast, might prejudice security. The problem is not entirely new to courts: evidence is sometimes “sealed” by judges in sensitive cases, and other confidential matters may require special handling. But the employment of judges to guard the many secrets of Guantánamo, with opinions in which documents are heavily redacted, may encourage judges to relax restraints on the practice. That would smell of the Star Chamber and ignore the “traditional Anglo-American distrust for secret trials,” as Justice Hugo Black wrote in In re Oliver (1948). The alternative—leaving the whole business to a nonjudicial executive bureaucracy—cannot be the answer. That would almost certainly lead to abuse. So the dilemma is real and fraught. The lesson, it seems, is to leave the matter where it stands, to ad hoc judicial decision, with the admonition to judges and the citizenry to keep their guard up and recall Coke’s remonstration to the king. That means, regrettably, that we shall have to live with judicial opinions that, from time to time, are so heavily redacted that the text is fully known only to a few. Suspicions of executive corruption and judicial partiality will be the sorry result.

Related: Undue Process and Regret Is Not Enough, by Cathleen Kaveny

Published in the 2012-01-27 issue: 

Joseph D. Becker, a founding partner of Becker, Glynn, Melamed and Muffly, a Manhattan law firm, is author of The American Law of Nations (Judis).

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