Homeland Security Secretary Kristi Noem seemed to misunderstand what habeas corpus is during a Senate hearing Tuesday, flipping the core right on its head and saying it was a power of the president to deport people.
In fact, it is the right to demand the government prove to a judge it has a good reason for the arrest and detention of someone.
Administration figures have said President Trump is pondering suspending habeas corpus rights when it comes to immigration enforcement, igniting a feverish pushback from Democrats, immigrant rights groups and civil liberties organizations who say the president is treading on dangerous ground.
Sen. Maggie Hassan, New Hampshire Democrat, prodded Ms. Noem on the idea at a Homeland Security and Governmental Affairs Committee hearing, asking her what habeas corpus is.
“Habeas corpus is a constitutional right the president has to remove people from this country,” Ms. Noem said.
“That’s incorrect,” Ms. Hassan countered. “Habeas corpus is the legal principle that requires the government to provide a public reason for detaining and imprisoning people.”
She called it the “foundational right” that separates free societies from police states.
Sen. Elissa Slotkin, Michigan Democrat, also chastised the secretary for fumbling her answer on habeas corpus.
“You sat here in front of all of us and swore an oath to the United States Constitution, and that is not at all what habeas corpus is,” she said.
The Constitution allows for suspension of habeas corpus during a time of “rebellion or invasion.” It does not say who may do the suspending — the president or Congress — though the language appears in Article I, which generally lays out duties and powers of the Legislative Branch.
President Lincoln suspended habeas corpus during the Civil War, but the decision was so controversial that he came to Congress to get post facto permission.
Ms. Hassan challenged Ms. Noem on whether she would respect a court order that ruled against any Trump attempt to unilaterally suspend habeas corpus.
“We are following all federal court orders,” Ms. Noem said.
“That is obviously not true for anyone who reads the news,” Ms. Hassan replied.
“I wouldn’t rely on the news for your facts,” Ms. Noem said.
