Hassan Got Habeas Corpus Wrong, Too

The senator corrected Kristi Noem with at best a partial and weak definition of the core democratic principle

I’m an independent journalist whose reporting is made possible by a few paid supporters.

Sen. Maggie Hassan (D-NH) during her exchange yesterday with Homeland Security Secretary Kristi Noem during a Senate hearing. (Screengrab / PBS video.)

Sen. Maggie Hassan (D-NH) misstated the core democratic element of habeas corpus yesterday while correcting Homeland Security Secretary Kristi Noem’s wildly inaccurate definition.

Noem was testifying before the Senate Homeland Security & Governmental Affairs Committee about her department’s budget request, but recent White House interest in suspending habeas corpus drove Democrats to question Noem about her commitment to habeas corpus.

Noem completely and shockingly — as a cabinet secretary overseeing multiple law-enforcement agencies — misstated habeas corpus, calling it the president’s constitutional right to remove people from the country.

In fact, habeas corpus is the principle that anyone detained by the government can challenge their detention in court. This foundational element of democracy predates the discovery of America and is typically taught in high school.

The White House is considering suspending habeas corpus on the basis of false and debunked claims of a Venezuelan invasion. Hassan interrupted Noem before she could elaborate on what individual rights she believed habeas corpus allows the president to suspend.

Hassan’s own definition of habeas corpus, however, fell alarmingly short of a full-throated defense and didn’t even mention courts, let alone the right to challenge one’s detention in court or the power of a court to rule on detentions. Here’s what Hassan 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.”

Earlier, Hassan said “it’s obviously really important to get this right.” But she ended up not asking Noem whether detainees have the right to challenge their detention in court, only whether the government would have to state a reason for it.

“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?”

Hassan has a law degree and spent years working in civil law. But yesterday she frequently appeared to consult notes while discussing habeas corpus and is also one of the Democrats who most often joins Republicans on issues relevant to immigration and national security.

Hassan voted to confirm Noem as secretary and to pass the Laken Riley Act restricting the discretionary latitude of federal immigration enforcement. In 2017, Hassan’s first year in the Senate, she is said to have started attending weekly Senate meetings under the aegis of the right-wing Fellowship Foundation.

If adopted by the administration, Hassan’s definition of habeas corpus would actually open a massive doorway for Trump to bypass the entire legal system.

If Noem and the White House went by Hassan’s definition, they could simply issue a press release saying everyone they’re detaining is a gang member or drug dealer or terrorist or, in the case of Kilmar Abrego Garcia, now in a Salvadoran prison, all three.

Noem last week told Rep. Eli Crane (R-AZ) during a House hearing that “I’m not a constitutional lawyer,” but she believed illegal border crossings constitute a premise for suspending habeas corpus. It’s only been suspended four times in U.S. history, only during actual wars, and always by Congress except during the Civil War.

As I’ve written, claims of a Venezuelan gang army have not only been refuted by Trump’s own intelligence apparatus, but appear to have arisen from blatantly spurious sources. And the administration has in no way acted as if a genuine invasion is under way — there have been no known attempts of interrogating detainees or offering them deals to obtain intelligence about the putative invasion. Just the opposite; the administration has let hundreds of detainees out of their hands almost immediately.

In yesterday’s testimony, Noem ended up saying, “I support habeas corpus.” She added, inaccurately, “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.”

(Sen. Andy Kim (D-NJ) later got Noem to acknowledge that the Constitution addresses suspending habeas corpus in Article I, about congressional, not presidential powers.)

Hassan’s office did not immediately respond to my request for comment, but I asked former White House ethics lawyer Richard Painter about Hassan’s response.

Painter said, “The person has the right to say ‘I demand to see a judge,’” adding, “This is really important that they understand how habeas corpus works.”

---

I’m a veteran journalist and TV news producer who’s worked at MSNBC, CNN, ABCNews, The Daily Show, Air America Radio, and TYT. You can support my reporting with a donation or paid subscription. Thank you.