CNN
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The future of habeas corpus has been pushed into the spotlight as President Donald Trump has been involved in discussions inside his administration over potentially taking the extreme step of suspending the procedure.
Habeas corpus is a legal principle that allows people who believe they are being unlawfully detained or imprisoned to petition for their release in court.
Immigrants and rights groups have filed habeas petitions in recent months as Trump has tried to speed up deportations as part of his immigration agenda.
Still, habeas petitions are notoriously difficult to win in federal court, and it will be a challenge for most immigrants to obtain lawyers.
Lee Kovarsky, law professor at the University of Texas and expert on habeas corpus, said it would be a “national historical disaster.”
“The executive could just detain you, and there would be no recourse,” he said. “Obviously they would do it to try to detain certain non citizens, but there’s no reason why it’s limited to them.”
White House deputy chief of staff Stephen Miller said Friday the administration was “actively looking at” suspending habeas corpus and it “depends on whether the courts do the right thing or not.”
But the Constitution allows habeas corpus to be suspended only when “in Cases of Rebellion or Invasion the public Safety may require it.”
“The Constitution makes clear that suspension of habeas corpus is to be reserved for actual rebellion or invasion posing the most dire threats to public safety. And Congress has never passed a law authorizing deportations without any court involvement, as Miller suggests,” CNN senior legal analyst and former federal prosecutor Elie Honig said.
Kovarsky said the reason why suspension of habeas corpus is so restricted “is precisely because it’s so severe.”
“You have no right, to a court, to say that you’re being unlawfully detained. So in a way, the cash value of your substantive rights is zero if you don’t have a judge to evaluate them,” he said.
The Supreme Court issued a murky, unsigned order on April 7 allowing Trump to use the centuries-old Alien Enemies Act to speed up deportations for now while at the same time, the court said migrants subject to deportation under the act were entitled to notice and an opportunity to challenge their removal through federal habeas corpus petitions, marking a partial win for migrants.
Following the Supreme Court’s decision, the American Civil Liberties Union filed a series of habeas lawsuits seeking to protect identified clients as well as “similarly situated” Venezuelans who could potentially be targeted under the Alien Enemies Act.
The Supreme Court also issued a rare overnight order on April 19th where a majority of justices blocked the Trump administration from deporting a group of immigrants in Texas.
Habeas corpus has been used in US courts including over issues with detaining alleged enemy combatants at Guantanamo Bay, Cuba, in recent years. The Supreme Court initially ruled in 2008 that detainees at the Guantanamo prison have the right to habeas corpus.
In one case, a federal judge ruled in 2021 that the detention of one detainee being held at the US military prison in Guantanamo Bay was unlawful. The judge granted a petition for a writ of habeas corpus to Asadullah Haroon Gul, who was accused of being a member of an extremist group.
Gul, whom the US went on to repatriate to Afghanistan, became the first detainee at the Guantanamo Bay prison to win a habeas petition in 10 years.
Another high-profile case related to habeas corpus involves Mahmoud Khalil, the Palestinian activist and legal permanent resident who was detained by immigration officers in March. Khali filed a habeas corpus petition to challenge the legality of his detention, and his case still faces legal challenges as he faces deportation.
Habeas corpus has been suspended only four times in the history of the US, including by former President Abraham Lincoln during the Civil War.
The other three times include “in eleven South Carolina counties overrun by the Ku Klux Klan during Reconstruction; in two provinces of the Philippines during a 1905 insurrection; and in Hawaii after the bombing of Pearl Harbor,” according to the National Constitution Center.
