By Justin J. Wert, an assistant professor of political science at the University of Oklahoma.
On March 7, 2011, President Barack Obama signed an executive order authorizing military commissions to begin again at Guantanamo Bay after a two-and-a-half-year hiatus. But while the President's order reminded the country of his now-hollow promise to close down Guantanamo within his first year in office, it also served to remind us of the political and legal debates over the writ of habeas corpus that ensued immediately after the first detainees were brought to Camp X-Ray in January 2002. Indeed, the President's Executive Order states clearly that:
Detainees at Guantánamo have the constitutional privilege of the writ of habeas corpus, and nothing in this order is intended to affect the jurisdiction of Federal courts to determine the legality of their detention.
Habeas Corpus in America: The Politics of Individual Rights accounts for the development of one of the most important - but least understood - components of American constitutional law. Scholars, legal practitioners, politicians, and citizens alike, hold deeply divergent views about the writ's historical development and normative function.
To complicate matters even more, almost all existing studies of habeas divide their analysis of the Great Writ of Liberty into so-called "extraordinary" periods (like war and crisis) and "ordinary" periods (like its evolving use as a remedy for challenging criminal convictions in the United States), making it even more difficult to imagine a systemic and coherent account of the writ's role in American political development more generally. As a result, we still tend to ask very different questions - and therefore always produce very different answers - about habeas' function in American constitutional law, theory, and history.