Homeland Security Secretary Kristi Noem sparked controversy by mischaracterizing the constitutional principle of habeas corpus. Speaking during a Senate hearing, she described it as “a constitutional right that the president has to be able to remove people from this country and suspend their rights.” This was about President Lincoln’s actions during the Civil War.
Senator Maggie Hassan promptly corrected Noem, emphasizing that habeas corpus is a fundamental legal right allowing individuals to challenge unlawful detention in court.
“That’s incorrect,” said the New Hampshire Democrat. She defined the “legal principle that requires that the government provide a public reason for detaining and imprisoning people.”
Hassan, a former attorney who practiced in Boston, went on to call habeas corpus “the foundational right that separates free societies like America from police states like North Korea.”
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Kristi Noem acknowledged her support for habeas corpus but reiterated that presidents have suspended it during crises, citing historical precedents including Lincoln, Grant, FDR, and Bush. However, legal experts clarified that the U.S. Constitution grants Congress, not the president, the authority to suspend habeas corpus, and only in cases of rebellion or invasion.
This incident has intensified concerns about the Trump administration’s approach to immigration enforcement and civil liberties. Adviser Stephen Miller has advocated for suspending habeas corpus to expedite deportations amid claims of a migrant “invasion.” Legal scholars warn that such actions could erode constitutional protections and face significant judicial resistance.
The debate underscores tensions between the executive and judicial branches over immigration policy and constitutional rights, with legal scholars emphasizing Congress’s role in suspensions and the judiciary’s authority to review detentions.
What is Habeas Corpus?
The Latin term means, literally, “you have the body.” Federal courts use a writ of habeas corpus to bring a prisoner before a neutral judge to determine if imprisonment is legal.
The framers included habeas corpus in the Constitution as a principle drawn from English common law. In 1679, Parliament enacted the Habeas Corpus Act to ensure that the king released prisoners when the law offered no justification for their confinement.
The Constitution’s Suspension Clause, found in the second clause of Section 9 of Article I, states habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.”
