Freedom Corner: Habeas Corpus and Its Place in the American Judicial Process

The writ of habeas corpus is a legal defense that allows individuals detained by a government authority to challenge their detention in court. Its existence predates even the genesis of the United States, as it was first introduced in the creation of the English Mangna Carta in 1215. *

But legal experts at policy organizations such as the Brennan Justice Center and The American Immigration Council, and academic institutions like Hofstra University say the procedure has come under fire under the administration of President Donald Trump.

In May, White House Deputy Chief of Staff Stephen Miller told reporters that the Trump administration is actively looking at suspending habeas corpus to continue its campaign of mass deportations across the country, according to a report from the BBC. Miller’s rationale, the article noted, is that the U.S. Constitution allows for habeas corpus in times of “rebellion or invasion.”

The administration suffered “high-profile” setbacks in federal court to Trump’s immigration agenda and is actively looking for ways to eliminate roadblocks to the president’s deportations campaign.*

What is habeas corpus and why legal experts say it is important.

The legal protection works as follows: If a criminal defendant or an immigrant detainee believes that the government lacks legal authority to detain them, they can petition a court to order their release.*

The center’s article stated that habeas corpus applies to anyone in the United States regardless of citizenship or residency status. There are approximately 12,000 habeas corpus claims made in court every year, according to the Brennan Justice Center. Only slightly more than 10% of these claims filed in capital cases are successful. For other cases, the success rate is under 1%.*

Etymologically, habeas corpus comes from Latin. It means “you should have the body.” If invoked, the writ requires a judge to have a detainee physically present to consider whether their detainment is legal, the article stated.

The onus to prove that the individual’s detention is legal falls on the government. If the habeas corpus challenge is successful and the detainee is being unlawfully detained, that individual must be freed, legal experts say.*

This protection has been enshrined in the U.S. Constitution in Article 1, Section 9, Clause 2, where it states: “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,” according to a snippet of the Constitution found on congress.gov.

Why and how is it under attack?

Only the U.S. Congress — not the president — can suspend habeas corpus, according to the American Immigration Council (AIC).

Historically, when the executive branch has tried in the past to suspend habeas corpus under the claim that there is a rebellion or invasion, courts have struck that claim down. ~
Habeas corpus has been suspended four times in U.S. history, most recently after the attack on Pearl Harbor in 1941.

The Trump administration’s strategy to try and skirt past habeas corpus, legal experts say*, has entailed invoking the use of the Alien Enemies Act of 1798, a law that authorizes mass detentions and deportation during wartime. The administration has used the act to accuse Venezuelan migrants in the United States as members of the criminal gang Tren de Aragua.

Venezuelan migrants have filed habeas corpus petitions across the country, raising the arguments that they are not “alien enemies,” that the Alien Enemies Act was improperly applied in peacetime, according to legal experts *.

The U.S. Supreme Court in April re-affirmed immigrants’ ability to invoke habeas corpus as a legal defense.

Habeas corpus petitions have, throughout the year, prevented the Trump administration from using the act to conduct further deportations of Venezuelan immigrants without an opportunity for a court hearing, legal experts wrote.*

The Trump administration has also tried to get around habeas corpus by moving prisoners rapidly from one federal district to another in an attempt to evade the obligation to respond to judges, hoping to deport the scholars before the courts could act, according to an article in The Legal Tribune Online written by Hofstra University law Professor Eric Freedman.

Freedman’s article talked about the cases of four foreign scholars studying at American universities who were detained by immigration authorities and later released because of habeas corpus.

Courts have uniformly blocked these efforts.  In the article, Freedman also wrote about one case, at the beginning of July, where judges wrote "to allow the government to undermine habeas jurisdiction by moving detainees without notice or accountability reduces the writ of habeas corpus to a game of jurisdictional hide-and-seek."

*This information was sourced from an article on the Brennan Center for Justice website.