Weary defendants have been told time and time again that ignorance of the law is no excuse, but that old adage has never stopped Kristi Noem.
The Department of Homeland Security head was asked to define habeas corpus during a congressional hearing on Tuesday and offered something like the procedure's exact opposite. (For the unaware, habeas corpus is a right granted to prisoners that allows them to question the legality of their imprisonment via petitions to the court.) Noem was grilled on the idea by Sen. Maggie Hassan, D-N.H., offering up that the centuries-old principle was a right given to the president to deport people of his choosing.
"Habeas corpus is a constitutional right that the president has to be able to remove people from this country and suspend their right to..." Noem began, before being cut off by senators.
"Excuse me, that's incorrect. Habeas corpus is the legal principle that requires that the government provide a public reason for detaining and imprisoning people," Hassan said. "If not for that protection, the government could simply arrest people, including American citizens, and hold them indefinitely for no reason."
Noem incorrectly interjected that President Abraham Lincoln "used it," referring to the suspension of habeas corpus during the Civil War. The Constitution allows for the suspension "when in cases of rebellion or invasion the public safety may require it." Congress retroactively approved Lincoln's recess suspension of the privilege in 1863.
"The president of the United States has the authority under the Constitution to decide if it should be suspended or not," Noem said, trotting out an "invasion" argument that the Trump administration has used to justify recent deportations.
If that's the tack Trump hopes to take, he's unlikely to find support in Congress or the courts. The same Supreme Court that granted the president wide-ranging immunity for acts carried out in office bristled at his use of the Alien Enemies Act to expedite deportations of Venezuelan migrants. The high court ordered a stop to ongoing deportations and demanded due process for any migrants facing removal.
Still, that hasn't stopped Trump advisers from using the language of invasion to lay the groundwork for the eventual suspension of habeas corpus. White House Deputy Chief of Staff Stephen Miller has repeatedly hinted at stripping all would-be deportees of due process and the ability to challenge their detentions.
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