Habeas Corpus Has Already Been Suspended For Some

Written By Leeja Miller

Sources:


Transcript:

(Stephen Miller) “The privilege of the writ of habeas corpus can be suspended in a time of invasion, so it’s an option we’re actively looking at.”

(Kristi Noem) “Habeas corpus is a constitutional right that the president has to be able to remove people from this country.” “Let me stop you, ma’am. Excuse me, that’s incorrect.”

A foundational constitutional protection that is apparently baffling to certain members of Trump’s team, habeas corpus has been making the rounds on the news lately. Trump’s deputy chief of staff Stephen Miller created a stir when he indicated the regime was looking into how to suspend the writ, and the director of the department of homeland security and self-proclaimed proud puppy killer Kristi Noem caused further controversy a couple weeks ago when she seemed unable to define what habeas corpus is under questioning by members of the Senate Committee on Homeland Security and Governmental Affairs.

The reality is that a lot of people probably can’t define habeas corpus in this country. Most of those people, however, aren’t in charge of a major federal department actively detaining tens of thousands of people. As someone in charge of assisting the President with faithfully executing the laws of the land, who swore an oath to uphold the constitution, a constitution which explicitly provides that, quote, “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,” Kristi Noem should, at the very least, have a vague understanding of what habeas corpus is as she rounds up humans and shoves them into holding pens on behalf of the federal government.

Given the shortcomings of our failing educational system in this country, let me do my patriotic duty by defining habeas corpus for us all, and giving some context behind why this writ is so consequential and why the threat of its elimination should be deeply concerning for everyone currently present on US soil, citizens and non-citizens alike.

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With constitutional principles as foundational as habeas corpus now somehow becoming a partisan issue, increasingly the news media is using headlines that interpret these legal ideas in very different ways, depending on the bias of the news source. This headline from The National Memo caught my eye: “Habeas Corpus and the Cabinet of Clowns.” It’s helpful to see in the Ground News browser extension that this publication leans left, so to get a fuller picture of the story I can click on Full Coverage. On the Ground News website I can see that 210 sources are covering this topic, with interpretations varying wildly depending on the bias of the publication.

For example, left leaning HuffPost uses the headline “House Democrat Totally Schools Kristi Noem Over This Key Constitutional Right” while far right The Blaze uses the headline “Trump’s truth about ‘due process’ has the left melting down.” Depending on where you get your news, you’re going to get very different takes on the same story. And if you only pay attention to one side or the other you might miss the full picture.

This is where Ground News comes in - and why I've been using them for over a year. Today’s partner Ground News is an app and website that offers tools to help you critically analyze the news you read, providing context to understand the full picture.

By using the Ground News Vantage Subscription, I can also see the blindspot feed where I can see stories disproportionately covered by one side of the political spectrum. For example, almost no right-leaning sources are covering the story “Trump Homeland Chief Noem Backs Nationalist in Poland’s Election” Interesting. I feel better equipped to make sense of what’s happening in the world without being influenced by just one perspective. And listen I’m not the only one who loves Ground News, the Nobel Peace Center even called it "an excellent way to stay informed, avoid echo chambers, and expand your worldview.”

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In the United States today, the writ of habeas corpus gives people who are being held in prison or otherwise detained the right to challenge their detention in court. Detainees may contest their detention on the grounds that their detention is unconstitutional or based on incorrect application of federal law. Due process, the idea that someone has the right to notice and an opportunity to be heard before they are denied their life, liberty, or property, is closely tied to habeas corpus. If someone is detained and being denied a trial, that is the state detaining someone unconstitutionally, without due process, at which point the person’s right to the writ of habeas corpus would kick in and they could challenge their detention on the grounds that it is unconstitutional because they were denied their due process.

The writ of habeas corpus has literally hundreds of years of precedent and was brought to the United States from English common law. In fact, it is the only writ from English common law explicitly mentioned and protected in the US constitution. It was included by the framers of the constitution, having won a battle against monarchical, autocratic rule. It was the monarchy that necessitated the creation of habeas corpus to begin with as a protection against tyrannical rule. At its most basic, habeas corpus protects people from being imprisoned indefinitely by the government. If you begin to consider all the reasons why an out of control ruler might want to imprison people, you start to understand the breadth of abuses that are protected against by the writ of habeas corpus. It protects against being indefinitely imprisoned for being a personal enemy of the ruler, as retaliation for activities the ruler doesn’t like, for being poor, for being brown, for being a certain religion. It requires the state to provide a good reason for why you should continue to be detained. And while of course abuses still continue, because there are numerous instances a person could point to in which the “good reason” given by the government to detain someone was questionable at best. It still, at the very least, requires the government to justify its actions, and gives the detainee an opportunity to be heard before a judge on the public record.

Habeas corpus is also essential to the checks and balances between the three branches of government. If the DOJ, an arm of the executive branch, chooses to arrest someone, they must go before a judge in the judicial branch to justify that detention, and it is usually based on the laws written and passed by Congress in the legislative branch that the DOJ then justifies the detention. Without habeas corpus, law enforcement under the executive branch could detain individuals without having to answer to anyone. And that’s, of course, entirely the point behind why the Trump regime is “looking into” the suspension of habeas corpus.

In the case that recently came before the Supreme Court related to immigrant detainees being deported to El Salvador under the auspices of the Alien Enemies Act, it was habeas corpus that the Supreme Court ruled provided protection to the detainees. They had the right to due process, and could exercise their right to due process by challenging their detention in court through a habeas corpus petition, in which each individual detainee could submit an argument to the court that they were being held improperly. Anticipating this reality, given what the law and the constitution says on top of decades of Supreme Court precedent, the people pulling the strings of the Trump regime have been planning, likely since before he was elected, to lay the ground work for an attempt to suspend the right to habeas corpus in order to force through their immigration policy goals. Understanding why requires us to understand why the ability to suspend habeas corpus rights was written into the constitution. Why would a leader want or need to suspend that right, and why would the framers even offer it as an option?

Article one, section nine of the US constitution says “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.” This confirms both that there IS a guarantee to the right of habeas corpus–it shall not be suspended ever except for in specific circumstances. It also confirms that there ARE circumstances under which the state should be able to hold people indefinitely without due process. That is in cases of rebellion, or in cases of invasion, wherein public safety requires it. What it does not explicitly confirm is WHO has the authority to suspend habeas and what counts as an invasion and in what cases public safety requires the suspension of the writ. That has had to be ironed out over time through Congressional laws and Supreme Court precedent.

There have only been a handful of times in the history of the United States when the power to suspend habeas corpus has been exercised explicitly. First to successfully invoke the suspension of habeas corpus was Abraham Lincoln when it became obvious that an armed rebellion was leading the nation into a civil war. He made the declaration without consulting Congress, as Congress was not in session as the conflict was escalating. When Congress did resume, they retroactively approved the suspension of the writ. Before that happened, lawsuits mounted challenging Lincoln’s ability to unilaterally declare the end of habeas corpus. Chief Justice Roger Taney ruled that it was Congress, not the president, that had the power to suspend habeas corpus, as the clause related to the writ is in Article one of the constitution, which is the article dedicated to the legislative branch.

After the Civil War, the writ of habeas corpus was suspended again by President Ulysses S. Grant, specifically in nine South Carolina counties where Klansmen and others were violently opposing Reconstruction. This act by President Grant was preceded by a law passed by Congress which granted him the right to suspend habeas in the event of violent conspiracies against federal authority during Reconstruction.

Habeas corpus was again suspended, this time during World War II in Hawaii immediately after the attack on Pearl Harbor, in response to the threat of imminent invasion.

Those were times of specific invocation of the suspension of the writ, but numerous other times throughout our history, the writ of habeas corpus has not been outright suspended, instead just tweaked and molded depending on the needs of the time. It is those less explicit curtailments of habeas corpus that are most informative now that the Trump regime is eyeing suspension of the writ. For example, during World War II there was no explicit declaration that habeas corpus would be suspended for the 110,000 people of Japanese origin who were rounded up and placed in internment camps across the country. But the suspension was implied, given that the Supreme Court, in its infamous Korematzu decision, upheld the government’s ability to hold tens of thousands of people against their will, to detain them, without a trial, for an indefinite period, for the purposes of national security.

Despite that history, since the founding, the writ of habeas corpus has actually largely expanded in the past 250 years, allowing for the federal courts to grant writs even to prisoners held in state prisons. However, in 1996, after the Oklahoma City bombing, Clinton signed into law the Antiterrorism and Effective Death Penalty Act (or the AEDPA). This act ushered in a new wave of, we’ll call them, tweaks to the right to habeas corpus in the face of growing threats from terrorism. The AEDPA set a one year statute of limitations on habeas petitions, limited the power of federal judges to grant relief in state court matters, and also limited the ability of petitioners to file multiple or successive petitions. It was meant to help ensure that the habeas petition wasn’t abused by detainees as a means of simply harassing the courts over their legitimate confinement. It was also meant to quote “provide for an effective death penalty,” meaning make it harder to mount repeated challenges to a death penalty conviction.

And then, of course, 9/11 happened, and the threat of terrorism took on even deeper significance as the Bush administration pushed to strip potential detainees and accused terrorists of due process and habeas corpus rights. Again, this was not an all-out declaration of the suspension of habeas corpus, but merely a chipping away at the right for specific targets. A November 23rd, 2001 Presidential order attempted to give the president the power to detain enemy combatants indefinitely without a court hearing or legal counsel. That order was ultimately struck down by the Supreme Court, which confirmed in two separate cases that US citizens could not be denied the right to due process and habeas petitions and that foreign nationals held in Guantanamo were still subject to US jurisdiction and still enjoyed constitutional protections.

Despite Bush and the Republican Congress’ best efforts, the Supreme Court time and again stood up for the right of habeas corpus, even in the face of terrorism and mounting pressure from Washington. In 2006, Congress passed the Military Commissions Act which moved trials for “enemy combatants” to special military tribunals that were within the jurisdiction of the President, who exercised full discretion over their ongoing imprisonment, due process be damned. But again the Supreme Court ruled that the Military Commissions Act was unconstitutional because it, in effect, suspended the right of habeas corpus, a right that the court had already ruled was guaranteed even to enemy combatants, even to detainees in Guantanamo.

And so, in light of that history, we have a better understanding of the scope of habeas corpus and the incredibly dire circumstances that need to be happening in order for habeas to legitimately be suspended. Only in times of war, of literal enemy invasion or literal, civil war level, armed rebellion, has the Supreme Court found that suspending habeas is, as required by the constitution, in the interest of public safety. And even then, there are times where the suspension is not warranted in the case of the so called “War on Terror” or, in hindsight, should not have been granted in the case of the Korematzu decision, which is roundly condemned as one of the worst Supreme Court decisions in history.

Which is why the Trump administration and, before that, the Trump campaign, has spent months if not YEARS selling the lie that there is an “invasion” at the southern border. That choice of language, “invasion,” is not by accident. Claiming an invasion is happening can justify all manner of human rights abuses, and it is the explicit language used in the habeas corpus clause in the constitution to justify a suspension of the writ. In times of invasion. And so by selling the lie that we are facing a dangerous, terrorist filled invasion of immigrants at the border, even though it is in no way an invasion the way the word has been traditionally defined, that is an invasion of troops from an enemy state with which the US is actively at war, by repeating the lie over and over and over again, a tactic Trump’s team has perfected over the last decade–anything can be made to be true if you just repeat it enough and cherry pick information and make up facts to fraudulently support your lie. And so the Trump regime is betting that after years of Trump and Fox news and MAGA pundits all screaming from the rooftops about the invasion at the border, even though illegal crossings at the border are down, even though immigrants are statistically less likely to commit crimes than citizens are, even though immigrants contribute a staggering amount of value to our economy in the form of their labor and their tax revenue, even if none of the people on that plane to El Salvador were terrorists, none of that matters because they’ve been pounding the drums and sounding the alarms on an “invasion” for so long that there is a significant portion of the population that genuinely believes that we are actively under attack by an invading army of criminals and terrorists from Latin America and elsewhere, all here to kill our daughters and take our jobs but also collect welfare and unemployment, to fraudulently vote, and to dirty the gene pool with their brown babies, god forbid.

But while they’ve been playing up the idea of an “invasion” at the southern border to the public, they are also well aware that any sort of suspension of habeas corpus for immigrant detainees, which, to be clear, is already happening in actuality even if the government hasn’t declared an explicit suspension of habeas–if you send immigrants to CECOT in El Salvador without due process, there is no recourse for them to seek habeas relief from down there–so let’s not pretend this isn’t already happening in practice, but the Trump team also knows that no official suspension of habeas would be upheld by the Supreme Court, even one as conservative as this one, no one would legally define what’s happening at the border as an invasion as it is understood in that clause of the constitution. And Trump’s team knows this, and so by also eroding the trust in the courts, by questioning their holdings at every turn, by accusing any judge or justice making holdings against them of being radical liberals and communists, they are attempting to steep their deeply illegal, deeply unconstitutional actions in fake legal reasoning, a phenomenon legal scholars Leah Litman and Daniel Deacon recently called “legalistic noncompliance” in a piece for The Atlantic. In it, they write, “We observed a clear pattern: The administration uses the language of the law as cover to claim that it is complying with court orders when in fact it is not. We call this “legalistic noncompliance,” a term intended to capture how the administration has deployed an array of specious legal arguments to conceal what is actually pervasive defiance of judicial oversight. It is a powerful strategy, as it obscures the substance of what the administration is doing with the soothing language of the law.”

By convincing the public that, one, there is a dramatic and dangerous invasion of terrorists at the southern border and, two, that any judge who rules against them is simply a far left communist plant who hates America, the Trump administration is then able to couch its practice of spiriting away immigrant detainees in the night to foreign countries, of putting people on planes faster than they can obtain legal relief, of outright denying due process rights guaranteed to people, yes even non-citizens, under the constitution, if you’re in my comments section saying “but they’re not citizens” respectfully shut the fuck up, that doesn’t matter they still get due process, yes even if they’ve committed crimes, the Trump regime is able to couch allllll of that blatantly unconstitutional activity in the seemingly legalistic argument that the Constitution grants the right to suspend habeas corpus (to Congress but let’s just ignore that) in cases of invasion. See, it’s right there, right in the constitution. We are just being patriots and protecting America from that invasion through perfectly legal means. And because they’re also simultaneously eroding the public education system in this country, very few people have the legal understanding to think otherwise.

Which is why it’s so important to pay attention not to that one time Abraham Lincoln declared a suspension of habeas corpus but instead to the instances wherein habeas was denied to a group of people without any formal declaration, in the dead of night when no one was watching, or while taking advantage of a political or cultural moment in which people were more willing to look the other way while people were being held against their will, indefinitely, no hearing, no lawyer, no justice. It is that quiet slipping away of guaranteed freedoms and privileges that appear to be the hallmark of this administration. There will not be a moment when he declares a suspension of habeas corpus. It will simply no longer be available for more and more groups of people. There will be no moment when he declares that the rule of judges no longer matters, that he will not follow judicial orders. He will simply continue to break the law and violate the orders while attempting to gaslight the country into thinking this is all valid legal argument because look at these big shiny law words I’m using. Which is why it is the job of people like me to continue shouting, over and over and over again, about this quiet erosion. So that it doesn’t go unnoticed. So that we don’t become the proverbial frogs in the boiling pot of water, unaware that we’re being cooked until it’s too late. Habeas corpus is already being denied to immigrants in this country, in direct contradiction to Supreme Court orders. It’s already suspended, at least for some of us. And it is the job of Congress and of the judiciary to step in and protect against further erosion, to say that this is unconstitutional and if you continue to commit unconstitutional acts, there will be consequences. Whether or not we should have faith in either branch to step up in defense of the rule of law is another question. But it is our job to not look away. To continue to talk about it, to notice, and to speak out against it. If I’m going to be a frog in a boiling pot of water at the very least I’m not going to go down without screaming about it.

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