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In a tense exchange during the Senate hearing Tuesday, Democrat Sen. Maggie Hassan asked Homeland Security Secretary Christie Noem if he could define “Habeas Corpus.”
“Habeas Corpus” is the constitutional right to ensure that people have the opportunity to challenge imprisonment before a judge. Habeas Corpus ensures that the government cannot bind anyone without legitimate basis.
But Noem, the director of the Department of Homeland Security, gave him a very different definition. Instead, she mistakenly stated that habeas are “the president’s right to be able to take people out of this country.”
Habeas Corpus is now on the Trump administration’s crosshairs as the president repeatedly complained that such protections slowed his agenda for deportation. To avoid some of these protections, President Trump has invoked the “alien enemy law” centuries ago. This allows the US government to quickly eliminate certain non-citizens who are considered “the enemy of the United States” during wartime without giving them the opportunity to challenge detention and removal.
Hundreds of Venezuelan men have already been targeted by the regime, and have been removed under the alien enemy law since they were called in March. These removals have been the subject of many lawsuits. However, many judges, including all nine justice in the U.S. Supreme Court, have revealed that these men are entitled to a legitimate process that includes the opportunity to challenge detention via habeas corpus.
Tuesday’s exchange also came after White House adviser Stephen Miller recently told reporters that the administration was “actively looking” with a halt on the rights to corpus habits.
Can the administration do that? Let’s take a look at the mechanics behind Habeas Corpus.
How the popular corpus works
Habeas Corpus offers the same protection to those resident in the United States, regardless of their citizenship status.
If someone believes they are illegally detained, they can go before a federal judge and ask the judge to issue a court warrant, that is a court order. The order certifies that the government has the authority to hold the person in court, whether federal, state or local, and that it has the authority to detain the person. If a federal judge discovers that there is no legal basis for the government to do so, the person must be released.
In the immigration context, individuals generally need to exhaust all other measures to release all other measures before filing a habeas-protection petition.
However, as the Trump administration expands forced detention, more people in immigrant detention will not be given the opportunity to be released in immigration courts because they do not have access to basic procedures like bond hearings. Without a standard opportunity to advocate for their release, they will be forced to file a habeasistic petition in federal court.
When will non-citizens submit habeas troops petitions?
Habeas corpora is not given lightly. A federal judge does not simply release anyone who filed the petition. In some cases, non-citizens who have already been deported from the United States will be given a habeas-protection petition.
Supreme Court lawsuit Zadvydasv in 2001. In Davis, the judge ruled that anyone with a final removal order cannot be detained for more than six months unless the government can prove its plan to expel the person in the near future. But in some cases, the government nevertheless continues to detain people with final removal orders indefinitely. In these cases, those detained regularly use habeas and advocate for release, taking into account the Supreme Court’s decision in Zadvida. In other words, Habeas Corpus acts as a check on the administrative department, ensuring that it follows rules interpreted by the Supreme Court.
Non-citizens have also been released from detention during the community pandemic using habeas-protection petitions. They argued that the government was violating their rights related to their health, given that they were likely to contract covid in quarters, often unsanitary quarters during their detention.
Can the President suspend the habeas corpus?
Only Congress, not the president, can suspend the habeas corpus.
Habeas corpus may only be suspended under rare exceptions, such as in the case of invasion, rebellion, or serious public safety threats. These exceptions are proposed only by Congress. When the Secretariat tried to invade that power earlier, the court overthrew it.
The court has made it clear that the constitution has a minimum due process requirement. If they are abandoned, it must be done by Congress.
Habeas Corpus has been suspended just four times in US history after the attack on Pearl Harbor in 1941. Even under a Trump-controlled Congress, the chances that it might happen again are very slim.
The legal principles of the corpus of habeas protection are at the heart of America’s values of personal and physical freedom. As Senator Hassan said during a recent Senate hearing, it is the “funest right to distinguish a free society like America from a police state like North Korea.”
This is true whether or not the elected officials know the definition.
Submitted below: Trump administration, Department of Homeland Security
