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It is a matter of great pride to me (and of interest to a few) that I have held high positions in all three branches of the federal government. It is a matter of great embarrassment to me that I struck out in all three branches in efforts to save habeas corpus from the considerable diminution it has suffered in recent years. STRIKE ONE The first defeat occurred while I was in Congress. In the 1970s, the Supreme Court had begun to chip away at the jurisdiction of federal courts to issue habeas corpus writs to rehear defenses that had been unsuccessful in state criminal law proceedings. In Stone v. Powell (1976), the Court held 6-3 that if the defendant had been given a full and fair hearing in state court on claims of unlawful searches or seizures, that was all she wrote. The late Justice William Brennan Jr. predicted in his dissent that the case was the beginning of an evisceration of the Great Writ. I thought he was right, and put in legislation to overturn Stone v. Powell. As I recall, I couldn’t even get a hearing on the bill, even though I was part of the majority on the House Judiciary Committee. Fear of crime was high in the country then, and the prevailing view was that judges were “soft on crime.” Congress wanted no part of that fight. STRIKE TWO Fast forward to the early 1990s. Chief Justice William Rehnquist was pushing hard to further limit the availability of habeas corpus in the federal courts. He had designated retired Justice Lewis Powell Jr. to head up a committee to make recommendations on habeas reform. To no one’s surprise, the Powell committee in late 1989 had recommended substantial retrenchment on habeas in federal court. The chief justice was very satisfied and put those recommendations on the “consent” calendar, which meant that they would be approved automatically by the U.S. Judicial Conference without discussion. But Chief Judge Donald Lay of the 8th Circuit objected, and a lively discussion ensued, much to the chief justice’s dismay. Debate continued for many months among the judges and in Congress. In the midst of the back and forth, I became chief judge of the D.C. Circuit, took a seat on the Judicial Conference, and entered the fray. Eventually, the Judicial Conference voted down the Powell committee’s recommendations. The conference also voted to advise the Senate Judiciary Committee, which was then considering similar limits on habeas corpus, that we were opposed to the Senate bill. Though that bill didn’t make it all the way to law, the handwriting was very much on the wall. STRIKE THREE My most colossal failure on the subject of habeas occurred in the White House, when I was serving as President Bill Clinton’s counsel. The president had formed his doubts about habeas while serving as governor of Arkansas. Since he believed in the death penalty, he couldn’t understand why federal judges allowed successive petitions for writs of habeas corpus to delay death sentences for years and years. He reminded me that justice was supposed to have an element of timeliness and that habeas was being misused to destroy that timeliness. The president was primed to sign off on the habeas changes that were part of a pending counter-terrorism bill — a bill that he very much wanted Congress to pass in 1995. My staff and I persuaded him to look at another bill that had been drafted by the NAACP Legal Defense Fund. The alternative legislation would have limited the number of habeas petitions that could be filed in a case and would have imposed a tough time limit on when such petitions could be filed. But it also would have preserved the scope of the claims that could be raised. Thanks to a strong letter from four former attorneys general in support of the alternative, the president authorized me to try it on for size with Rep. Henry Hyde. He chaired the House Judiciary Committee, before which the anti-terrorism bill was pending. A good lawyer (and a former colleague in Congress and the Illinois state legislature), Henry looked at the proposal and said, “Well, I could be for this. Is your client for it?” I assured him that my client was leaning in that direction. Hastening back to the White House, I felt very optimistic about the chances of saving habeas. Unfortunately, before I could tell the president what I thought was the good news, Oklahoma’s attorney general brought a group of relatives of the bombing victims to the White House. They told the president that restricting habeas was the most important thing that he could do for them. It would be outrageous, they said, if the perpetrator of the Oklahoma City bombing were allowed to delay his just punishment by means of habeas corpus petitions. Well. The president called me in to tell me that he intended to support whatever changes Congress wanted to make to habeas. I was to discontinue any negotiations with Chairman Hyde or anybody else. So I had struck out for the third time, and Congress went on to greatly restrict the availability of the Great Writ. Ironically, Timothy McVeigh, who the Oklahomans were worried would abuse the writ, never used it. But long before he had even been caught, let alone tried and convicted, McVeigh was an unwitting player in the habeas corpus battle. WE’RE OUT Almost 40 years ago, Justice Brennan said of the writ of habeas corpus in Fay v. Noia (1963), “Its root principle is that in a civilized society, government must always be accountable to the judiciary for a man’s imprisonment.” With the passage of time, we’ve seen that the need for such accountability is even greater than some imagined. In my home state of Illinois, several death row prisoners who, it turned out, were not the guilty parties after all, were spared the death sentence because of habeas. Unfortunately, it has become harder and harder to overcome the roadblocks that Congress and the Supreme Court have put in the way of obtaining habeas corpus relief. Seekers of the writ should be grateful that there were only three branches of government in which I could serve. Abner J. Mikva, who teaches at the University of Chicago Law School, is a former judge on the U.S. Circuit Court of Appeals for the D.C. Circuit, former White House counsel for President Bill Clinton, and a former member of the U.S. House of Representatives. He served as chief judge of the D.C. Circuit from 1991 to 1994.

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