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 is 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.
14 comments:
You can see why he might want to deport illegals and violent individuals without settled status. But it has to be LEGAL! Otherwise he (and his successors) can just chuck anyone out, any time, for no reason. Some of the judges are pretty out of order too so it isn't straightforwardly Trump wrong Judges right. Nightmare.
For God's sake don't cite Lincoln: some of his antics approached marxist/fascist levels of unconstitutionality.
I suspect, without actually looking, that the thing to do is to look at the constitution and distinguish rights of (i) citizens, (ii) noncitizens in the country legally, (iii) invaders.
She certainly seems to have got Habeus Corpus base over apex.
Molesworth was only slightly better informed:
"History began with a lot of barons who opresed everbode. Then they became respectable and agreed king John was going too far. Thou mayest hav the body they cried so he signed magna carta in xchange. When king john had got the body he didn’t kno what to do with it of course. He ort to hav put a gun in its hand and make it appere like suicide chiz like in the detective stories."
This. Citizens get HC, invaders (or guests like foreign students) don't.
The power must lie with the president.
It’s why and how Lincoln suspended it.
In that particular case the insurrection amounted to half the nation.
The core issue has been those who define the law having drifted leftwards from the population. The Rule of Law is important, but it is predicted upon it serving the nation, not the upper layers (cream/scum - delete as applicable) alone.
Whilst I have little love for Trump and his hatchetmen, they're where they are because the West have allowed the Law to be hijacked and co-opted by self-appointed "betters." This is something the politicians don't seem to fully grasp, although they might should we leave the ECHR, and still find Judges saying people can't be deported as their pet budgie won't get Trill in Serbia.
The last few decades have been a slow retelling of the Masque of the Red Death.
*predicated!
HC and Citizenship - the Constitution says nothing at all about rights being for just citizens, and there have been SC rulings on it. HC applies to anyone within the US' borders according the US' own laws and rules.
I guess the Founding Fathers, for some odd reason, were not as bothered about immigration at that time, and never consider it would become a problem.
Oh well, the Holy C does say "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."
So if you class the invaders as evidence of invasion then the Writ (which is a "Privilege" apparently) may indeed be suspended.
I return to my studies.
I find nowt else in the Holy C. So people who wish to argue interminably will have to look at Congressional Statute Law and precedent in Common Law. The latter could take them back to the Middle Ages long before that traitorous republic was formed.
"As Robert Bolt's More asks: when the laws are all down and the Devil turns on you - what then?"
The law already doesn't protect me (as a white middle aged man on the Right) so colour me unconcerned.
"Habeas corpus is a constitutional right that the President has to be able to remove people from this country."
Ms Noam is quite right, that is the interpretation she must mouth in order to keep her job. Trump has surrounded himself with sycophants and they will all cry 'wonderful Donald' at anything he says. They get to keep their jobs.
So for how much longer will the bulwarks of the SC et al hold out against the Trump battering ram? Can he overturn HC or more likely circumvent it. He has willing and cooperative and powerful supporters and HC and being nice to illegals has not so many friends. We shall see.
Meanwhile Mr Musk has discovered that politics and business are very different things with only superficial similarities. All this codswallop about 'efficiency' will go nowhere, government does not want efficiency, it wants favours and influence and votes.
BTW, here in UK Habeas Corpus did not apply to us peasants until much later on and you are unwise if you think a TLA cannot hide you away if it so chooses, even today.
Mr Cowshed may have the right of it (BTL previous post):
"I don't think there's an ideology behind any of it - attempting to explain Trump (and the rest of 'em) by attempting to discover one is a complete waste of time."
But, waste of time or not, I'm still looking ...
To be fair I'm more worried about the unnerving bilge from team Coalition Of The Willing - Germany seem to be doubling down on their suicidal energy policy, Maricon wants to fight everyone except his wife, and the Baltic States, snug in their NATO membership, are poking their tongues out shouting "my dad's bigger than your dad". And TTK is wholly supportive of all of them, while promising new military initiatives right left and centre. While we're broke.
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