President Donald Trump and his administration are “actively looking at” suspending the writ of habeas corpus for migrants, denying them their constitutional right to challenge in court if the United States government is legally detaining them, Stephen Miller told reporters on Friday.
The White House deputy chief of staff, who has crafted severe and callous immigration policy throughout both of Trump’s terms, cited the Constitution and referred to habeas corpus as a “privilege” that “can be suspended in time of invasion.” The Constitution reads, “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.”
While the clause does not specifically note who in Washington has the power to invoke it, the resounding consensus among legal and constitutional scholars is that Congress has to sign off on suspending habeas corpus. Supreme Court Justice Amy Coney Barrett, in an essay co-written with the attorney Neal Katyal for the National Constitution Center, also said that revoking the writ is up to Congress.
In the country’s history, the writ of habeas corpus has only been revoked four times, most notably by Abraham Lincoln during the Civil War. It was also revoked in the Philippines in 1905, in Hawaii after Pearl Harbor, and in 1871 to fight the Ku Klux Klan in South Carolina.
Miller was asked about the possibility of revoking this legal protection just hours after a federal judge in Vermont had ordered the release of Rumeysa Öztürk, the Tufts University student who was taken off the street by immigration authorities in March. Öztürk, a Turkish-born Fulbright scholar studying in a PhD program in Massachusetts, had a legal F-1 visa. Last year, she, along with three other people, wrote an op-ed in support of the Palestinian people and the Tufts Community Union Senate resolution that the school divest from companies with direct or indirect ties to Israel.
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Öztürk was arrested for engaging in “activities in support of Hamas,” the Department of Homeland Security said in a statement at the time.
The Vermont judge, a Clinton appointee, granted bail for the graduate student who had been detained in a Louisiana ICE facility for over six weeks. “There is absolutely no evidence that she has engaged in violence or advocated violence. She has no criminal record,” Judge William Sessions said at the end of Friday’s three-hour hearing. “She has done nothing other than essentially attend her university and expand her contacts within the community in such a supportive way.”
Trump and Miller, during the president’s first term, on the campaign trail, and now during this stint in office, have positioned immigrants, both documented and not, as a threat. Trump has painted immigrants as “animals” who are “poisoning the blood of our country,” while Miller has said that “America is for Americans and Americans only.” During Trump’s first term, Miller orchestrated Trump’s family-separation policy and the Muslim ban, among other crackdowns that targeted migrants of color.
Since taking office in January, the Trump administration, amongst other things, invoked the centuries-old Alien Enemies Act to remove men that immigration enforcement claimed, often without sufficient evidence, were gang members, targeted university students who vocally opposed Israel’s actions against the Palestinian people, and signed a slew of sweeping anti-immigration executive orders.
Miller, when talking to reporters, said that Trump’s decision on whether to suspend the writ of habeas corpus “depends on whether the courts do the right thing or not”—a chilling claim, as the Trump administration has fired tens of judges tasked with handling immigration cases and launched personal attacks against individual judges who went against the president. Just this week, President Trump railed against “activist judges” in a Wednesday Truth Social post, writing, “Our Court System is not letting me do the job I was Elected to do. Activist judges must let the Trump Administration deport murderers, and other criminals who have come into our Country illegally, WITHOUT DELAY!!!”
“Congress has the authority to suspend habeas corpus – not Stephen Miller, not the president,” Marc Elias, an attorney for the Democratic Party, told MSNBC’s Chris Hayes on Friday. “Stephen Miller is wrong on the law, he’s wrong on the facts. But what he is is he’s the representative of a deranged authoritarian who believes he can exercise all power.”
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