Habeas corpus: unnerving bilge from Team Trump

Habeas corpus is a hallowed doctrine, one of the glories of English law – though it doesn’t necessarily mean what people take it to mean (see below).  It was also faithfully uploaded into the US Constitution, being considered by the founding fathers to be a critical component of the freedoms they’d fought for and sought to enshrine.

Accuracy as to what it does mean is completely lost on Kristi Noem, Trump’s Secretary of Homeland Security.  Context: the Trump administration is seeking to deport, summarily, people it doesn’t like: starting with foreign students but ultimately extending to pretty much anyone, it seems.  “Seeking” is actually too weak because they’ve already started: but various US courts have been digging in and make orders for the Executive to desist.  So now Team Trump is suggesting they’ll suspend what they term the “privilege” of habeas corpus - unless the courts see sense and just get out of their way.  Unsurprisingly, this topic has come up in Congressional hearings, and when Ms Noem was asked what she understood by the doctrine, replied thus:

“Habeas corpus is a constitutional right that the President has to be able to remove people from this country.” 

I’m no lawyer, but the summary I offer below is, I think, essentially accurate – and Noem is wildly, perversely, threateningly off the mark: willful Ministry of Truth stuff.  That’s pretty scary from the mouth of a high official in the Executive – whether we think she really is just pig-ignorant, or whether it’s the line she’s been told to use.  (Her interrogator, Sen Hassan, was a lot better on the subject but not wholly accurate either.)  We’ve yet to see how ultimately successful the courts will be in reining back the illegalities of Team Trump’s actions: but if they are cowed into subservience or just plain ignored, America – which I have huge regard for, personal long-term investments in, and where I have spent a lot of time – is in a very dark place.

To the extent that anyone thinks of it as a parlour-game to come up with sophistry favouring risible Trumpite interpretations of the US Constitution (see below), they need to have a serious think about the benefits of the Rule of Law, much under threat as it is in various walks of life right now, here as well as in the USA and elsewhere.  As Robert Bolt’s More asks: when the laws are all down and the Devil turns on you – what then?

ND  

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Habeas corpus: an amateur summary   (mine, not ChatGPT’s).  The origins of HC stem from a time when English barons and ‘magnates’ were wont to imprison people on their own say-so, just because they could.  The doctrine is that a person [the "corpus", i.e. body in question] detained by any power other than the due processes of law should be handed over (not necessarily released) to the proper authorities, to receive the King’s Justice.  

In the US Constitution, HC is not a “privilege” to be suspended at the whim of Donald Trump or anyone else, but a constitutional right that, explicitly, may only be suspended in circumstances of invasion or insurrection when the safety of citizens is at risk.  (There seems to be some debate as to whether the power to suspend lies with the President or Congress.)  The “justification” that’s being offered is, of course, that the President considers the USA is indeed under invasion … (from illegal immigrants).   

The vacuous Noem further opined that “Lincoln used (sic) HC” to the ends that, she asserts, a President is entitled to.  This is entirely false: Lincoln (a lawyer, of course) suspended HC with due and accurate consideration in circumstances when he could make a very strong case indeed for there being an insurrection in the wholly literal sense; AND his action was highly controversial, contested actively in the courts, and was in no sense a flippant sleight-of-hand for reasons of mere convenience.  Trump’s “invasion” is of course a very far-fetched confection under any sober interpretation of the word; and the idea that even a flood of illegals puts the safety of citizens at risk an even further stretch.  Deploying these arguments against individuals that have been ruled by the courts as not in the USA illegally and not posing risk to citizens (as in several of the current cases) just caps the action as the monstrosity it would be, if the threat were actually to be carried out.