DHS Secretary Thinks Habeas Corpus Is The Power To Deport People With No Due Process
from the that's-not-how-any-of-this-works dept
Our Secretary of Homeland Security, tasked with overseeing the detention of thousands of people, doesn’t understand one of the most fundamental protections against unlawful imprisonment in our legal system. And we’re not talking about some obscure technical detail — we’re talking about habeas corpus, a basic right that’s been around since the Magna Carta.
Kristi Noem — who recently made headlines by taking glamor selfies in El Salvador’s concentration camps — apparently has no fucking clue how habeas corpus works, as demonstrated during a Senate hearing when she was asked to define this cornerstone of civil liberty.
When quizzed about the definition of habeas corpus by Senator Maggie Hassan, Noem stumbled and then claimed it meant the literal opposite of what it means:
A quick transcript:
Hassan: Secretary Noem, what is habeas corpus?
Noem: Well, habeas corpus is a constitutional right that the president has to be able to remove people from this country….
Hassan: No, let me stop you
Noem [crosstalk]… and suspend their right to… that’s what suspend their right to…
Hassan: Excuse me, that’s incorrect.
Noem: Lincoln used it…
Hassan: Excuse me, habeas corpus…
Noem: [condescendingly] uh huh
Hassan: … 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 simple arrest people, including American citizens and hold them indefinitely for no reason. Habeas corpus is the foundational right that separates free societies like America from police states like North Korea. As a Senator from the “Live free or die” state, this matters a lot to me and my constituents and to all Americans. So, Secretary Noem, do you support the core protections that habeas corpus provides that the government must provide a public reason in order to detain and imprison someone?
Noem: 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.
There’s a lot of nonsense to unpack here. Noem’s response wasn’t just wrong — it was revealing. The only thing that seemed to be floating around her MAGA-pickled brain regarding habeas corpus was apparently Stephen Miller’s recent call to suspend habeas corpus entirely. When asked to define this foundational protection against government overreach, she instead described its complete elimination.
But beyond exposing her ignorance, Noem’s answer reveals a fundamental misunderstanding of constitutional power. The Constitution’s habeas corpus provision isn’t some presidential superpower — it’s actually a strict limitation on government authority:
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.
This isn’t about presidential authority — it’s about strictly limiting when the government can suspend this fundamental right. And even then, it’s Congress’s power, not the president’s. When Noem smugly referenced Lincoln’s suspension of habeas corpus, she apparently missed that the courts explicitly rejected his authority to do so.
This isn’t some obscure constitutional detail — it’s basic structure-of-government stuff. The habeas clause appears in Article I (Congress) not Article II (Executive) for a reason. The fact that our Homeland Security Secretary doesn’t grasp this is more than just embarrassing — it’s dangerous.
Let’s be absolutely clear about what’s happening here: the person in charge of the department that detains more people than any other federal agency fundamentally misunderstands — or deliberately misrepresents — the constitutional right that protects against unlawful detention. She swore an oath to defend a Constitution she apparently hasn’t read, thinking it grants presidents (and, via appointment power, herself) the power to detain and deport at will, when it actually does the opposite.
This isn’t just about constitutional ignorance. Coming right after her El Salvador prison tourism and Miller’s calls to suspend habeas corpus, it reveals a broader authoritarian vision: one where fundamental rights are seen as inconvenient obstacles to be removed, rather than essential protections to be preserved. In normal times, this level of constitutional illiteracy would be disqualifying for any government role. But these aren’t normal times — and that’s precisely why defending these basic principles matters more than ever.
Filed Under: dhs, donald trump, due process, habeas corpus, kristi noem, maggie hassan, stephen miller
Comments on “DHS Secretary Thinks Habeas Corpus Is The Power To Deport People With No Due Process”
I wouldn’t have even asked this. She has sworn to uphold the Constitution so whether she personally support in habeas corpus, she’s required to support it. She is demonstrating in her testimony that she is not in fact upholding the Constitution. It would just be nice if something actually happened as a consequence (for the secretary and the administration, rather than the victims of their unconstitutional machinations).
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She’s also demonstrating that she doesn’t understand the Constitution. My legal knowledge comes from watching way too many Law & Order–type shows, and even I knew what habeas corpus was to a better degree than she did.
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I think she understands what habeas corpus is just fine. At this point in her life I find it impossible to believe she wouldn’t have learned this even unintentionally. Her response was entirely deliberate and for an audience of one orange-shaded autocrat.
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No, she’s not. She’s demonstrating that she doesn’t give a flying fuck about it.
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Yes; that’s why he asked it.
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Sadly there is no punishment for violating the constitution, for the supposed highest law in the land it lacks any penalties for even the most flagrant and knowing violations of it.
Hey guys I think we found kobys true identity!
Yet again we have another grotesque revelation were the very foundational values of the US are distorted and perverted, and still there are people saying “This is what I voted for!”
Re: Get over it already.
How is this even rated “insightful”? Yes, people voted out the foundational values of the U.S., and intentionally so.
That is not a contradiction. Instead of pretending that it is, you should probably start explaining to people why this is a bad idea.
You could start a movement “Make America America Again”, short “MAAA”. If that sounds conservative, it is because it is. The Republican Party isn’t.
Stop pretending that stating the obvious is revelationary. You need to tell people why those changes are bad, not just that they are happening.
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Don’t ask me, ask those who voted for it.
No, they didn’t. Most people voted based on ignorance and lies.
And here I thought, just like many others, that I actually was stating the obvious because it needs to be stated again and again since it gets a negative reaction out of people who doesn’t like it getting stated.
They have been told repeatedly but until it affects them personally they don’t care because they feel secure in their ignorance.
Hey, be nice. Trump said he hires the very best people. If he says it’s true, it’s true. So what if the Trumperor has no clothes?
I’m not the least bit surprised. The GOP of today would be on the side of the Confederacy in the War to Preserve Slavery. And given how the GOP is full of segregationists (including the man at the top), a War to Reinstate Slavery is not off the table. A modern Republican invoking the name and accomplishments of Lincoln is, in effect, an attempt to claim his greatness without fighting for the values on which he stood.
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… Yes, DUE PROCESS is important, BUT how exactly would YOU justly process the tens of millions of aliens who illegally entered th US ??
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By processing them according to the law, it is that easy.
Btw, it is estimated there are 11-13 million undocumented immigrants in the US – not “tens of millions”.
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And of those 11-13 million, not all of them entered the country illegally. Aren’t most of them people who overstayed their visas? They entered the country legally.
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It’s called “the Constitution”. Even if people who illegally entered the country have fewer rights than citizens (whether native-born or naturalized), they still have rights like due process and habeas corpus. When you sacrifice their rights, you sacrifice yours as well—so don’t be too quick with the guillotine when your head can always end up on the chopping block.
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” Even if people who illegally entered the country have fewer rights than citizens (whether native-born or naturalized) ”
No, the are afforded the same rights as anyone in the U.S.
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No? Non-citizens can’t vote.
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Voting is just about the only citizen-exclusive right, though. The enumerated rights in the amendments generally refer to “persons”, not “citizens”. On top of that, the Constitution primarily sets out the “rights” (extents of authority is probably the better term) of the government rather than the rights of the citizens, which is why so many rights are independent of citizenship. The government generally doesn’t have the right/authority to disappear ANYONE, so the question of citizenship is rather beside the point.
Re: Re: But here you are…
You could have just stopped at five words and NOT looked like a freaking dumbass.
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If you have to add an all caps BUT after “Yes, DUE PROCESS is important,” you’ve already lost the entire point. If due process is important at all, there’s no but that can ethically or logically follow it.
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Yes, DUE PROCESS is important, BUT how do we get Trumplicans to recognize that fact?
What’s wrong with the above question.
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We can probably agree that dismantling the agencies responsible for that and overloading the courts tasked with it is not the way to handle that backlog.
The purpose of the government is not making money but implementing the rules of the Constitution. Morons may call everything not creating income “waste and fraud”, but making sure that inside of the U.S. the rules of its Constitution are upheld is what they are being paid for.
If they don’t bother with upholding the Constitution, they don’t have a justification for taxation other than tyranny.
Inconvenient work and expenses? Too bad, that is the deal.
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Irr-fucking-relevant.
Test for fitness...
All Cabinet members and department heads should be able to pass the equivalent of a middle school US civics final exam.
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They should have to pass the exam for naturalized citizens.
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I assume this means we can send Noem to CECOT?
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Maybe one day. For now, it’s fun to dream of ICE Barbie being on the other side of the bars.
These people do not care about laws, truth, science, or anything else that can stop their fever-dream of a world in which they have all of the power. They are not government officials because to be such they’d have to believe in the usefulness of government. They are simply tearing down our government in their own self-interest.
It turns out that democracy only works with a public that’s capable of critical thinking, so tearing down the education system over the last fifty years was their first step. Then came the creation of propaganda outlets that decried any accurate media. And finally the election of bad-faith actors by an electorate unable to understand that they’ve been led around by the nose.
Those in power see the rest of us as nothing more than resources to be exploited for their own gain.
If (and I stress IF) we have elections in 2026, those will be our very last chance to save democracy in America.
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They don’t want to govern, they want to rule.
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Or they want to be ruled.
🎵 Some of them want to abuse you / Some of them want to be abused
Here's your problem:
The Constitution is not a magic inviolable thing. It is a covenant between consenting adults. And they can just let it drop, or just focus on parts they want to heed and ignore others. It comes with enforcement mechanisms and structured and instances, but all those operate by consent. If a majority walks away from it, it does not magically get to be upset. This is how modern Christianity works: by just having everyone cherry-pick the kind of things they consider a good idea while collectively walking away from others.
Catholics mostly defer to the pope as their “inspired” umpire who gets to decide what to ignore and what to heed in which degree and manner.
And a working majority of Americans has picked Trump and his sycophants as the person to determine which parts of the Constitution to selectively ignore. Working social structures depend on people working on a common goal, and the easiest way to achieve that is a single person giving the shots and everyone else following. So the normal social being has to be a follower, and the leading positions have to be assumed by sociopaths.
You point out all the time that Trump and his horde are not following the Constitution. But they made a choice not to do so. And it saves them a lot of head-scratching.
Instead of focusing on pointing out the obvious, that the Constitution is no longer functionally in place as the guiding prescription of the government’s mechanisms and intent, you should focus on why that is a bad idea. And why the U.S. would be better off by actually sticking to its Constitution instead of selectively walking away from it.
Because if you don’t manage to get a working majority to care, the Constitution’s guarantees are void.
Famously Benjamin Franklin described the new political order of the U.S. as “a Republic, if you can keep it”.
It required the will of the populace to stick with it then, it requires it now. You don’t need people to agree with your analysis, you need them to care. And that means hammering home the consequences of the particular kind of constitutional violations you are looking at, not just establishing the unconstitutionality.
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Yeah, they did that. But thanks!
Checks and balances
Witchy Noem understands nothing about the CONUS and has sworn an oath (which means nothing to Republicans) to uphold that which she doesn’t understand.
Normally we’d exxpect that Congress or the courts would address this. But they are fecal (oh did I misspell “feckless”?) pieces of shit.
Noem needs to be renditioned to (formerly El Salvador) Sudan along with Pam Blondi and Robert “No vaccines where they save lives and let me swim in sewage” Kennedy Jr. (What a disgrace, but hey, worm away.)
Can’t wait for the “Golden Dome” when we can’t even intercept one ICBM after 15 years of testing by our most bribed government contractors.
Beam me over to an alternate timeline, Scotty.
Koby, that you fam?
The loophole they're trying to use
They’re trying to claim that the presence of some illegal immigrants is a foreign invasion, which allows them to legally suspend Habeus Corpus. That’s some full-on authoritarian BS.
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No, it doesn’t. It allows Congress to make that determination and declaration. Now Congress is sufficiently stocked with bootlickers to make that happen, but you’d still need them to actually do it.
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To be accurate, they’re claiming that the presence of drug gangs made up of undocumented/illegal immigrants is the “invasion” pretense necessary for the suspension of habeas corpus. If they claimed that it was just “illegals” alone, nobody but the dumbest people would buy their claim. Claiming that MS-13 being the U.S. requires the suspension of civil rights might pass muster with conservative-leaning judges who are on board with Project 2025, but any ruling that goes for Trump would likely die at higher levels (including SCOTUS).
The American government does something American in America
“What are we, a bunch of Asians?!”
“Habeas corpus” is Latin. Nobody speaks Latin, so it can mean anything you want.
“Habeas corpus ad subjiciendum et recipiendum”? Well, it means “The President can send anyone to El Salvador”.
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That is not even remotely true. Latin had rules, nouns, and grammar just like any other language.
Habeas Corpus literally means “you should have the body” (according to Wikipedia).
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I think you missed the intended humor in the statement you responded to.
How sad is it that a site called “techdirt” has to give the US executive branch daily civics lessons that they should have learned to graduate high school?
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They know what they are doing. The people in need of civics lessons are those who think wagging fingers at fascists who place power above the law is an effective strategy.
Facts not in evidence.
There’s only 1 person in the audience that she is performing for (maybe 2 if you count Stephen Miller). Nothing she says is meant for the benefit of congress or the public.
Courts: 'Don't do X' Regime: Does X anyway. 'You were saying?'
This isn’t about presidential authority — it’s about strictly limiting when the government can suspend this fundamental right. And even then, it’s Congress’s power, not the president’s. When Noem smugly referenced Lincoln’s suspension of habeas corpus, she apparently missed that the courts explicitly rejected his authority to do so.
Unfortunately as has been made all too horrifically clear these past few months ‘X power is only available to congress’ and ‘the courts explicitly rejected the president’s claim that they have X power’ means way less than it should these days, and that’s not even getting into the basically non-existent odds of the current batch of republican in congress refusing Trump’s order to revoke habeas corpus should he do so.
Latin misunderstanding
When Kristy Noem explained to the Senate the Latin term Habeus Corpus as,
“It means, ‘I have the body’, and I will dispose of it in whatever country the President directs me to, unless he says otherwise, which is his right”.
Perhaps she misheard the question as “Habemus Corpus, which is “we have the body”.