A crucial check against government abuse

Last week, U.S. Sen. Maggie Hassan, D-N.H., asked Homeland Security Secretary Kristi Noem to define the concept of Habeas Corpus. Noem responded that the term meant, “a constitutional right that the president has to be able to remove people from this country and suspend their rights.”

Noem certainly botched her answer. Habeas Corpus is no such thing. It is a Latin term that means, literally, “you have the body.” Legally speaking, it refers to an arrested person’s right to petition a judge to order the executive branch to bring him into court to determine if his detention is legal. Thus, it is not a power of the government over the individual but a right the individual can claim against the government.

Secretary Noem made her gaffe just before an important anniversary in the history of this legal protection. On May 27, in the year 1679, royal assent was given to the Habeas Corpus Act of 1679, making it a part of English law. While not the right’s beginning, this landmark piece of legislation formed the groundwork for the right as we now understand and observe it. So important was the 1679 Act that English jurist William Blackstone called it a “second Magna Carta” and the “Great Writ of Liberty.” Habeas Corpus went on to be enshrined in our constitution. Article I, Section 9 states that it, “shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.”

Sen. Hassan’s question was certainly fueled by partisan gamesmanship. Still, defenders of Noem should not let their own partisanship obscure the importance of the discussed right. Habeas Corpus is a crucial element for maintaining the rule of law. Rather than merely cross-firing talking points, we should seek to understand the right’s importance.

Part of government’s job is to restrain and to punish. Yet it should not do so on the whim of state officials. Instead, governments only should restrain and punish individuals in the enforcement of existing laws. One way we maintain this limitation on government action is through writing laws down and publishing them. Another way involves trials and other forms of due process to check on whether the government has correctly applied the law.

Habeas Corpus falls more into the latter category, guarding against a particular threat. Executive officials, like police officers, can arrest and detain persons they believe guilty of a crime. They may do so to restrain further criminal activity from taking place. But this detention only is legitimate if it is temporary, giving way to the state prosecuting the accused in a court of law. There, the state must obtain a conviction, in a forum where the accused can mount a defense, or the person is acquitted and released.

But what if executive officials simply never took the detained person to court? What if they did so because they wished to incarcerate the person but did not have the evidence to obtain a conviction before a judge and a jury? Governments have done so throughout human history, sometimes blatantly and sometimes under the pretense that something was delaying them from taking the imprisoned person to court.

To allow government officials to detain a person without any other recourse would destroy the rule of law. It would sever the connection between legislative and executive power by giving no concrete means to hold government officials to account for who they detain and for how long. Habeas Corpus forces the government to start making its legal case against an imprisoned person or let him go free.

It should be no surprise that this protection arose in a Christian country such as England and was maintained in another one, the United States of America. Habeas Corpus recognizes human fallenness. Government officials are but men and will think, feel, and act in unjust ways in the exercise of their power. The state can and does oppress the people rather than fulfilling its God-given task of working for the people’s good. This protection permits some check and balance against such corruption. It knows men are not God and their rule should not be treated as such.

The Constitution does permit the suspension of Habeas Corpus in limited circumstances, namely when a rebellion or invasion makes doing so necessary for the public safety. But this scenario imagines the suspension of this right only in cases where the continued existence of the Constitution, and thus the protection of all of our rights, is legitimately threatened. It is an exception grounded in pursuit of the broader, deeper rule.

So, we should know what Habeas Corpus is in its historical and its constitutional forms. We should celebrate this anniversary and the good this right has guarded for centuries. Moreover, we should demand that officials like Secretary Noem also know it with precision. Ignorance of such matters should not be optional. Most importantly, we should hold our government to this crucial provision to limit the state and thereby to protect our liberty.