The Threat to Habeas Corpus

Is the foundation of liberty cracking under the weight of ignorance and cynicism?

"Well, the Constitution is clear—and that of course is the supreme law of the land—that the privilege of the writ of habeas corpus can be suspended in a time of invasion,”

--Stephen Miller, White House Deputy Chief of Staff, declaring war on, and ignorance of, the Constitution of the United States, 10 May 2025

In high school I was something of a screw-up, maybe a slacker. I was often distracted by things; whether it was a cheerleader I pined for but couldn't find the nerve to speak to, or whether I’d have time to get to a local Pizza joint for a slice and a beer during lunch (and if my fake ID would pass inspection) and get back, or if I could cut PE and go to the library to finish some homework due that afternoon? I had so much to think about.

Yet in that swirl of distraction, of thinking and planning about mostly non-academic matters, I learned—and retained—that habeas corpus (Latin for “We have the body”) represented a founding principle of jurisprudence in the United States, that legal action cannot be taken against any person without presenting evidence of the offense for which they are charged. Mere suspicion, hunch, or whim will not do.

I also learned that habeas corpus is enshrined in the Constitution.

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.

—Article I, Section 9, Paragraph 2.

One interpretation, by the way, that does not appear in the Constitution or anywhere else in American jurisprudence was offered by Homeland Security Secretary Kristi Noem, responding to Senator Maggie Hassan during testimony on 20 May 2025.

“Habeas corpus is a constitutional right that the president has to be able to remove people from this country.“

In fact, nowhere does the Constitution explicitly give the President authority to suspend habeas corpus. In the opening days of the Civil War, however, President Lincoln took the extraordinary step of suspending habeas corpus. In doing so he assumed power granted solely to Congress but is implicitly given the “Executive'' in a limited circumstance, in Article VI.

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

—Article IV, Section 4

Article IV addresses The States’ powers, rights and limitations. In late April of 1861, Congress was in recess and the rebellion threatened the seat of national government and the ability of members to travel to Washington DC or wherever the government might be forced to relocate. It only makes sense that in a nation-wide emergency, the National Executive would bear responsibility to protect Americans against insurrection and domestic violence. In April 1861, protecting the seat of government and Congress’s ability to reconvene meant keeping Maryland in the Union, thus stilling voices, detaining those calling for and instigating secession, particularly in Baltimore and the environs of the national Capitol.

Lincoln suspended the writ of habeas corpus in April, 1861, declaring his intention to submit the matter to Congress when it reconvened, as it did in July of that year. Lincoln also noted that the writ was not suspended nationally, rather it was suspended only where it must, to forestall further erosion of the integrity of the Union and the rule of law. Congress would debate the matter for the next two years, passing a bill in March 1863 that affirmed Lincoln’s action and officially authorized the President to suspend the habeas corpus during the rebellion. Lincoln had taken an unprecedented step, but by ceding the matter to Congress as soon as it could reconvene he preserved the separation of powers.

After the rebellion was crushed, habeas corpus was restored. While the writ has been de facto suspended during crises since the Civil War, it has not been formally suspended since 1865. Under the Espionage and Sabotage Acts during World War One, individuals were detained without trial for suspicion of sabotage or disloyalty, including a one-time Presidential candidate, Eugene Debs, who advised young men on avoiding conscription.

In World War Two, President Roosevelt issued Executive Order 9066, which authorized the Secretary of War to relocate “any and all persons” from designated areas. While the order did not specify Japanese Americans it fell almost exclusively on them. Some German and Italian Americans were detained under provisions of Presidential Proclamation 2526 and the Alien and Sedition Acts of 1798. The Senate and House of Representatives authorized funding to support the detentions in Public Law 77-503, which passed both Houses of Congress after 90 minutes of debate. EO 9066 and Public Law 77-503 were later upheld by the Supreme Court in Korematsu v. the United States for reasons of “military necessity.”

However, in neither the World War One or World War Two cases did anyone express formal consideration to suspending habeas corpus. Moreover in every case, the President acted with consent of Congress, which is consistent with Article I, Section 9, paragraph 2.

Following the attacks of 9/11, Congress passed the Military Commissions Act of 2006, authorizing the President to detain terrorism suspects in Guantanamo, thus limiting their ability of detainees to challenge their detention through habeas corpus. In Boumediene v. Bush in 2008, the Supreme Court ruled that Guantanamo detainees have the right to habeas corpus, reaffirming constitutional protections extend to non-citizens held in U.S. military facilities, even those not in the United States proper. In Hamdi v. Rumsfeld in 2004, Associate Justice Scalia, writing for the majority, upheld the right of habeas corpus in the case of U.S. citizens detained as enemy combatants; entitled to due process, including the right to challenge their detention before a neutral decision-maker.

Stephen Miller lies through omission. Habeas corpus can be suspended during time of invasion or rebellion, but only by Congress. The sole exception occurred during the Civil War when the existence of the nation was imperiled and the government itself was at risk of capture. Lincoln stretched the authority of his office in a dire emergency and gave that authority back to Congress at the first opportunity. Miller’s “study” of the Constitution seems to consist of scanning it for catchphrases, giving him a patina of knowledge that impresses an otherwise woefully ignorant boss. Miller’s rhetoric resembles the “tinny arf of a lapdog,” to borrow a favored phrase from George Will.

Kristi Noem’s grasp of the Constitution is dishonest and more deplorable (if that is possible) than Miller’s. Dishonest and deplorable because she certainly knows it isn’t “a right the president has to be able to remove people from this country.” Her answer to Senator Hassan reflects the cynicism and toadying that is the foundation of this administration.

For over two centuries Presidents and Congresses have faced dire emergencies and only a few times have acted to suppress liberty; during the Civil War when the nation’s existence was imperiled, and on the occasions when habeas corpus was effectively, but not explicitly, suspended. One of those occasions, the Japanese internment during World War Two, is today widely seen as a stain on the nation’s history. I personally believe the actions taken in World War One and following 9/11 are similarly ignominious.

It doesn't surprise me that this administration shows contempt for habeas corpus. It saddens and angers me, and I hope voters remember it in 2026 and 2028.