Kristi Noem gave an egregiously wrong definition of the legal principle habeas corpus while testifying to senators Tuesday.
“Habeas corpus is a constitutional right that the president has to be able to remove people from this country,” President Donald Trump’s homeland security secretary said.
She was quickly cut off by the stunned senator who had asked her to define the term, Maggie Hassan. “That’s incorrect,” the New Hampshire Democrat said.
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Hassan explained that the well-known legal concept refers to a detained person’s right to know why they are being held so they can challenge their imprisonment in court.
The Trump administration is considering revoking habeas corpus, which is enshrined by the Constitution, allowing it to hold detainees without any recourse to challenge their detention.
“If not for that protection, the government could simply arrest people, including American citizens, and hold them indefinitely for no reason,” Hassan told Noem. “Habeas corpus is the foundational right that separates free societies like America from police states like North Korea.”
After schooling Noem, Hassan asked her if she supported habeas corpus.
“I support habeas corpus,” answered Noem, who was testifying to Congress about the Department of Homeland Security’s budget. “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.”
Article I of the Constitution says that habeas corpus “shall not be suspended, unless when in Cases of Rebellion or Invasion the public safety may require it.”
While the Constitution doesn’t specify who holds the power to suspend habeas corpus, throughout the history of America, the power has belonged to Congress, not the president.
Habeas corpus has only been suspended four times. It was suspended throughout the country during the Civil War, in eleven South Carolina counties controlled by the Ku Klux Klan during the Reconstruction, in the Philippines during its 1905 insurrection, and in Hawaii after the Pearl Harbor bombing in 1941.
The Trump administration has faced legal pushback on its attempts to detain and deport undocumented immigrants and non-citizen activists without due process.
Stephen Miller, one of Trump’s top aides who is behind his mass deportation strategy, said earlier this month that habeas corpus was a “privilege” that the administration is looking at suspending.
Noem’s agency has played a key role in carrying out the mass deportation plan. She has earned the nickname ICE Barbie for often donning garish outfits to cosplay as a boots-on-the-ground law enforcement officer.
