Homeland Security Secretary Kristi Noem says the constitutional provision that allows people to legally challenge their detention by the government is actually a tool the Trump administration can use in its broader crackdown at the U.S.-Mexico border. She called habeas corpus “a constitutional right that the president has to be able to remove people from this country and suspend their rights.” Noem, testifying before a congressional committee Tuesday, gave that response when asked by Sen. Maggie Hassan to define the legal concept. “That’s incorrect,” the New Hampshire Democrat swiftly interrupted Noem, defining the “legal principle that requires that the government provide a public reason for detaining and imprisoning people.” Hassan, a former attorney who practiced in Boston, went on to call habeas corpus “the foundational right that separates free societies like America from police states like North Korea.” The back and forth follows comments by White House deputy chief of staff Stephen Miller, who said earlier this month that President Donald Trump is looking for ways to expand his administration’s legal power to deport migrants who are in the United States illegally. To achieve that, Miller said the administration is “actively looking at” suspending habeas corpus. What is habeas corpus? The Latin term means, literally, “you have the body.” Federal courts use a writ of habeas corpus to bring a prisoner before a neutral judge to determine if imprisonment is legal. Habeas corpus was included in the Constitution as an import from English common law. Parliament enacted the Habeas Corpus Act of 1679, which was meant to ensure that the king released prisoners when the law did not justify confining them. The Constitution’s Suspension Clause, the second clause of Section 9 of Article I, states that habeas corpus “shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.” Has it been suspended previously? Yes. The United States has suspended habeas corpus under four distinct circumstances during its history. Those usually involved authorization from Congress, something that would be nearly impossible today — even at Trump’s urging — given the narrow Republican majorities in the House and Senate. President Abraham Lincoln suspended habeas corpus multiple times during the Civil War, beginning in 1861 to detain suspected spies and Confederate sympathizers. He ignored a ruling from Roger Taney, the Supreme Court ‘s chief justice. Congress then authorized suspending it in 1863, which allowed Lincoln to do so again. Congress acted similarly under President Ulysses S. Grant, suspending habeas corpus in parts of South Carolina under the Civil Rights Act of 1871. Also known as the Ku Klux Klan Act, it was meant to counter violence and intimidation by groups that opposed Reconstruction in the South. Habeas corpus was suspended in two provinces of the Philippines in 1905, when it was a U.S. territory and authorities were worried about the threat of an insurrection, and in Hawaii after the 1941 bombing of Pearl Harbor but before it became a state in 1959. Writing before becoming a Supreme Court justice, Amy Coney Barrett co-authored a piece stating that the Suspension Clause “does not specify which branch of government has the authority to suspend the privilege of the writ, but most agree that only Congress can do it.” What has the Trump administration said about suspending it? Miller has said the administration is considering trying. “The Constitution is clear, and that […]