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
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.
"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
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