Posted on May 18, 2025
He Be An Ass
On Habeas Corpus
by
Daniel Clark
While
President Trump's supporters ridicule anybody who calls him an authoritarian, he
has been seriously thinking about suspending habeas corpus, the legal
requirement that a person be allowed to appear in person to challenge the
lawfulness of his imprisonment. We have
this from no less an authority than Secretary of Unpleasantry Stephen Miller,
who told a group of reporters outside the White House, "The Constitution is
clear ... that the privilege of the writ of habeas corpus can be suspended at a
time of invasion. So I would say that's
an action we're actively looking at."
Here and elsewhere, Trump is treating
"invasion" as the magic word that opens the escape hatch from legal
accountability, as we can see from his having previously employed it, however
unpersuasively, to invoke the Alien Enemies Act. It was on the pretext that America was under
invasion by Venezuelan criminal gang Tren de Aragua that Trump had sent more
than 200 detainees to a prison in El Salvador without due process. Accidentally included among them was Kilmar Abrego Garcia, who is not Venezuelan and also not a
member of Tren de Aragua, but to the best of our knowledge probably belongs to
the Salvadoran gang MS-13. In 2019, a
judge had issued a "withholding from removal" order, explicitly stating that
Abrego Garcia was not to be deported to El Salvador. For this reason, the Supreme Court has
directed Trump to facilitate his return to the United States.
Trump has
refused to do so, on the basis that he had formally designated both Tren de
Aragua and MS-13 as terrorist organizations.
This supposedly makes Abrego Garcia's detention legal under the Alien
Enemies Act, even though MS-13 is not alleged to be part of the Venezuelan
invading force, and regardless of the fact that criminal behavior in the
absence of a political motivation fails to meet the definition of terrorism in
the first place. When confronted with
the basic structural flaws in its rickety argument, the administration and its
media surrogates have lashed out with ad hominem responses, denouncing its
detractors as lovers of wife-beating, illegal alien gangsters.
What
Miller is now suggesting is that this same, unsupportable contention that we
are under invasion from Venezuela may be used to deprive a Turkish woman who is
here on a student visa of her right to challenge her detention through a writ
of habeas corpus. Romeysa
Ozturk's offense was that she wrote an op-ed for the Tufts University student
newspaper, in which she dishonestly called for the school to "acknowledge" that
the Israelis were committing genocide, and to divest from all companies that
have any connections to Israel. She
certainly does not come across as somebody who would be pleasant to meet, but
revoking her visa and holding her in detention for six weeks pending
deportation for this offense is not a rational response.
Secretary of State Marco Rubio is
correct when he says that there's no such thing as a right to a student visa,
but it doesn't logically follow that the federal government can void an already
issued visa on the basis that the person holding it is what a witty genius
might call a "nasty woman." Rubio's
defense of such an action is that the Immigration and Nationality Act provides
for deportation of a legal resident alien if it has "reasonable grounds to
believe" that the alien's continued presence in our country "would have
potentially serious adverse foreign policy consequences for the United
States." Yet there is no accusation that
Ozturk has committed any offending action beyond the mere expression of her
opinion in print.
If a
boilerplate leftist harangue in a college paper presents seriously adverse
foreign policy consequences, then we're already doomed. There was nothing in Ozturk's words that
could not have been gotten just as easily from a sizeable percentage of the
faculty and therefore the student body of just about any university in
America. To have locked Ozturk up on the
"reasonable grounds" that her words threatened the nation was an egregious
violation of the First Amendment, as well as the Fifth. Not only had she been unconstitutionally
deprived of liberty, but the Immigration and Nationality Act, a law that had
been made by Congress, was being used to abridge the freedom of the press.
A Vermont
court has since released Ozturk on bail, pending a hearing on whether her due
process rights were violated. It was
that decision that spurred Miller to suggest the suspension of habeas corpus,
meaning that if he and his boss had their way, this otherwise insignificant
student from Turkey could be locked up indefinitely, on the basis that she is a
participant in a metaphorical invasion of our country by Venezuela.
In keeping
with this typically Trumpian pattern of rounding off the facts, the president
posted on Truth Social, "I was elected to take bad people out of the United
States, among other things. I must be
allowed to do my job." The simplicity of
such statements lends his lawlessness a cloak of moral clarity. But of course bad people shouldn't
have any rights. They're bad!
Trump's
enunciation of his anti-bad people policy calls to mind the scene from A Man
For All Seasons in which Sir Thomas More argues with Will Roper about
whether the devil should be given the benefit of the law:
MORE: What would you do? Cut a great road through the law to get after
the devil?
ROPER:
Yes, I'd cut down every law in England to do that.
MORE: And
when the last law was down, and the devil turned "round on you, where would you
hide, Roper, the laws all being flat?
This country is planted thick with laws from coast to coast -- man's
laws, not God's -- and if you cut them down, and you're just the man to do it,
do you really think you could stand upright in the winds that would blow
then? Yes, I'd give the devil the
benefit of the law, for my own safety's sake!
Trump is
busily cutting down the laws in pursuit of the devil, and there seem to be a
lot of Will Ropers among us who trust him to do just that. Perhaps even a plurality of the electorate is
perfectly comfortable with Trump, Rubio, Miller et al playing the role of the
federal goodness police. The least they
owe themselves and the rest of us, however, is some consideration of what is to
follow.
If we are
to accept the proposition that the president may deprive bad people of their
constitutional rights, just by declaring an imaginary emergency based on an
imaginary invasion by imaginary terrorists, we cannot grant this power to only
the current occupant of the White House and not his successors. Not everybody is in agreement on the question
of who's bad and who's good. Some of
Trump's political opponents see Abrego Garcia not as a bad guy whose rights
have been violated, but as a wholesome, hard-working "Maryland father." There are plenty of politicians out there
whose "good people" list includes arsonists, looters, foreign gangsters, and
America-hating Marxist propagandists, and whose "bad people" list includes
business owners, policemen, responsible parents, and devout Christians and
Jews.
When one
of these politicians, armed with these creatively expanded presidential powers,
decides to go after those who supported Donald Trump, where are they going to
hide? Not behind habeas corpus, that's
for sure.
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