It Is Hard to Overstate How Wrong Kristi Noem Is About Habeas Corpus

Department of Homeland Security Secretary Kristi Noem appeared before a Senate committee on Tuesday and contended that habeas corpus, a constitutional right protecting individuals from government abuses, actually refers to a president’s right to subject individuals to government abuse. 

In an exchange about the Trump administration’s penchant for shipping immigrants to ghoulish prisons abroad, New Hampshire Senator Maggie Hasan asked Noem a simple question: “What is habeas corpus?” And according to Noem, “Habeas corpus is a constitutional right that the president has to be able to remove people from the country.” 

This is not right, or anywhere close to right. Habeas corpus—“produce the body,” roughly translated from Latin—refers to a person’s basic right to appear in court and challenge the legality of their detention. Habeas corpus is not a grant of power—it’s a limitation. It does not facilitate arbitrary treatment of people in the government’s custody—it prevents it. Noem was literally as wrong as wrong could be. Defining habeas corpus as Donald Trump’s right to disappear people is like defining a library as an event space for censors to host book burnings.

“If not for that protection, the government could simply arrest people, including American citizens, and hold them indefinitely for no reason,” Hasan said, describing habeas corpus as “the foundational right” that separates free societies from police states.

Noem’s problem extends beyond an inability to define habeas corpus when asked. Two months ago, the administration began summarily removing certain immigrants to a Salvadoran prison under the Alien Enemies Act of 1798, a wartime statute last used during World War II. After a lower court temporarily blocked this scheme, the Supreme Court intervened, allowing Trump’s order to take effect subject to the right of migrants to seek habeas relief. In response, the Trump administration has been flirting with the idea of getting rid of habeas altogether.

The Suspension Clause of the Constitution provides that habeas corpus “shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” So, Senior White House official Stephen Miller told reporters earlier this month that “the Constitution is clear” that “habeas corpus can be suspended in a time of invasion.” Miller neglected to mention that the Suspension Clause appears in Article I, pertaining to Congress, not Article II, pertaining to the president. He also failed to mention that the Clause is written as a broad prohibition with a small exception, and not a general grant of permission.

Noem backed Miller up at a congressional hearing last week anyway. Arizona Representative Eli Crane, a Republican, asked Noem if immigrants crossing the border from Mexico into the United States constitutes a “rebellion or invasion” that could allow a suspension of habeas corpus. “I’m not a constitutional lawyer, but I believe it does,” Noem replied, suggesting Miller’s argument for suspension has merit. 

It doesn’t. Multiple states filed lawsuits in the mid-1990s alleging that the federal government failed to enforce immigration laws and therefore violated the Constitution’s provision that requires it to “protect” states “against invasion.” And multiple federal appellate courts refused to construe invasion to mean “anything other than a military invasion.” In the courts’ view, states were only entitled to the protections of the Invasion Clause if they were “exposed to armed hostility from another political entity, such as another state or foreign country that is intending to overthrow the state’s government.” Noem might have a point, in other words, if the Mexican-American War hadn’t ended 177 years ago. 

The Senate hearing on Tuesday was more of the same from the Trump administration: Ask them anything—here, to define habeas corpus—and they try to concoct a justification for denying fundamental rights. When Hassan began to correct Noem’s false claims about habeas as a presidential power, Noem interjected, “Lincoln used it!” 

Noem is right that President Abraham Lincoln suspended the writ of habeas corpus in 1862, during the Civil War. But like Miller, Noem is leaving out an important detail: The Supreme Court held Lincoln’s action unconstitutional, and then Congress enacted legislation retroactively authorizing the suspension. The Civil War was also, notably, a real war, and not just the federal government feeling attacked by the existence of brown people.

Since then, Congress has only authorized the suspension of habeas corpus three times: during Reconstruction in South Carolina, in response to the Ku Klux Klan’s terrorism; in the early 1900s in the Philippines, which was then a U.S. territory and the government feared insurrection; and in the early 1940s in Hawaii, after the bombing of Pearl Harbor. None of those instances bear any resemblance to today’s “crisis”—immigration of people other than beneficiaries of South African apartheid.

In 1830, Chief Justice John Marshall wrote for a unanimous Supreme Court that “the great object” of habeas corpus is “the liberation of those who may be imprisoned without sufficient cause.” Noem is weaponizing ignorance in an attempt to redefine habeas corpus altogether, and lend further support to the Trump administration’s efforts to purge people of color from the country without regard for their rights under law.