Homeland Security Secretary Kristi Noem mangled a response to a question about habeas corpus at a Senate hearing on Tuesday, referring to the constitutional right of due process as a “right that the president has to be able to remove people from this country.”
Sen. Maggie Hassan, D-N.H., asked Noem about the constitutional protection after noting that White House adviser Stephen Miller told reporters earlier this month the administration was “actively looking at” suspending habeas corpus, the right to challenge an arrest or imprisonment.
“I want to clarify your position,” Hassan asked. “What is habeas corpus?”
“Well, habeas corpus is a constitutional right that the president has to be able to remove people from this country, and suspend their right to,” Noem responded before she was cut off by Hassan.
“That’s incorrect,” the senator said.
“Habeas corpus is the legal principle that requires that the government provide a public reason for detaining and imprisoning people. If not for that protection, the government could simply arrest people, including American citizens, and hold them indefinitely for no reason,” Hassan said, calling it a “foundational right.”
“So Secretary Noem, do you support the core protection that habeas corpus provides, that the government must provide a public reason in order to detain and imprison someone?” she asked.
Noem responded, “I support habeas corpus. I also recognize that the president of the United States has the authority under the Constitution to decide if it should be suspended or not.”
DHS did not immediately respond to a request for comment on Noem’s appearance.
President Donald Trump has repeatedly complained that the due process protections are slowing his efforts at mass deportations. He invoked the wartime Alien Enemies Act in a bid to sidestep such protections for alleged members of a Venezuelan gang, but the judges, including those on the Supreme Court, have held they’re entitled to due process.
Miller had suggested suspending habeas corpus in order to speed up deportations of people who came to the U.S. illegally, and cited what’s known as the “suspension clause” of the Constitution. That clause says, “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.”
Sen. Andy Kim, D-N.J., later asked Noem if she knew what article of the Constitution the clause is in.
“No, I do not, sir,” she said. Kim said it was in Article One, which outlines the powers of Congress, not the president.
“Can you confirm to us that you understand that any suspension of habeas corpus requires an act of Congress?” Kim asked.
Noem then noted correctly that President Abraham Lincoln had used the power during the Civil War.
“President Lincoln executed habeas corpus in the past with retroactive action by Congress. I believe that any president that was able to do that in the past, it should be afforded to our current day president,” she said.
Kim noted the courts had ruled against Lincoln, and that three times the right has been suspended since it was done by Congressional action.
He asked Noem if she’d had any conversations with Miller about a possible suspension, and she said she had not. She also volunteered that she’d not had any conversation with Trump on the topic.
“This president has never said he’s going to do this. He’s never communicated to me or his administration that they’re going to consider suspending habeas corpus. But I do think the Constitution allows them the right to consider it,” she said.
