What Kristi Noem Gets Wrong About Habeas Corpus
Homeland Security Secretary Kristi Noem at a congressional hearing on Tuesday had a contentious exchange about habeas corpus, the constitutional right that allows people to challenge their imprisonment in court.
Sen. Maggie Hassan (D–N.H.): What is habeas corpus?
Noem: Well habeas corpus is a constitutional right that the president has to be able to remove people from this country—
Hassan: No, let me stop you ma’am—
Noem: —and suspend their right to, suspend their right to—
Hassan: Excuse me, that’s incorrect.
Noem: President Lincoln used it.
Habeas corpus is a fundamental civil liberty: It effectively forces the state to justify why it is detaining someone. It is, by definition, a check on the government, not a right it possesses.
Noem is likely aware of this. The homeland security secretary told lawmakers at a different congressional hearing last week that immigration levels may justify suspending the protection. Giving her the benefit of the doubt, then, it’s possible she meant to imply today that President Donald Trump needs to subvert that right in order to deport people. And perhaps that is also what she meant by her reference to former President Abraham Lincoln, who did not most famously “use” habeas corpus but rather suspended it during the Civil War without congressional approval—an action
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