What Kristi Noem Gets Wrong About Habeas Corpus
Homeland Security Secretary Kristi Noem at a congressional hearing on Tuesday had a contentious exchange about habeas corpus, the constitutional right that allows people to challenge their imprisonment in court.
Sen. Maggie Hassan (D–N.H.): 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 ma'am—
Noem: —and suspend their right to, suspend their right to—
Hassan: Excuse me, that's incorrect.
Noem: President Lincoln used it.
Habeas corpus is a fundamental civil liberty: It effectively forces the state to justify why it is detaining someone. It is, by definition, a check on the government, not a right it possesses.
Noem is likely aware of this. The homeland security secretary told lawmakers at a different congressional hearing last week that immigration levels may justify suspending the protection. Giving her the benefit of the doubt, then, it's possible she meant to imply today that President Donald Trump needs to subvert that right in order to deport people. And perhaps that is also what she meant by her reference to former President Abraham Lincoln, who did not most famously "use" habeas corpus but rather suspended it during the Civil War without congressional approval—an action that was later found to be unconstitutional.
Viewing the exchange in a light most favorable to Noem, it generally comports with the administration's position. Stephen Miller, the White House deputy chief of staff for policy, said earlier this month that Trump is "actively looking at" suspending habeas corpus for migrants. "The president of the United States," Noem said later in the hearing today, "has the authority under the Constitution to decide if it should be suspended or not."
But that is highly constitutionally dubious, as Reason's Jacob Sullum wrote last week, for a few reasons. The first: The clause that allows for its suspension—"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"—is found in Article I of the Constitution, which governs Congress. The executive's powers are outlined in Article II.
That is in large part why Chief Justice Roger B. Taney of the U.S. Supreme Court ruled in Ex parte Merryman (1861) that Lincoln had violated the Constitution when he unilaterally suspended the right, which, in terms of the present-day debate, the Supreme Court has also confirmed applies to people in the United States unlawfully. (Congress ultimately approved Lincoln's suspension in 1863, about two years after his initial decree.)
Then there is the justification the Trump administration would have to invoke: that the U.S. is experiencing an "invasion," or that public safety is endangered so severely that it requires suspending a core constitutional protection. Whatever your views on immigration, the reference to invasion, as Sullum notes, has historically been understood (including in the courts) to reference literal warfare—a military attack, for example.
The "public safety" invocation would likewise be extremely tenuous, particularly when considering, for example, the Supreme Court's ruling in Boumediene v. Bush (2008), which affirmed that Guantanamo Bay detainees, who were also noncitizens, had the right to habeas corpus. If terrorism suspects are entitled to those petitions, then it stands to reason so should people like Rümeysa Öztürk, the Tufts student who was recently released from detention after a federal judge ruled the government had provided no evidence for her imprisonment other than that she co-authored a pro-Palestine op-ed.
Habeas corpus, and the Constitution broadly, protects unpopular people for a reason—and it protects them from the government. The president certainly has a prerogative to uphold the law. But that doesn't mean much if he and his administration engage in lawlessness to do so.
The post What Kristi Noem Gets Wrong About Habeas Corpus appeared first on Reason.com.
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San Francisco Chronicle
26 minutes ago
- San Francisco Chronicle
Here's what to know about American Samoans in Alaska who are being prosecuted after trying to vote
WHITTIER, Alaska (AP) — FOR MOVEMENT AT 9 A.M. EASTERN ON SATURDAY, 6/7. WITH VOTING-AMERICAN SAMOANS MAINBAR. They were born on U.S. soil, are entitled to U.S. passports and allowed to serve in the U.S. military, but 11 people in a small Alaska town are facing criminal charges after they tried to participate in a fundamental part of American democracy: voting. The defendants, who range in age from their 20s to their 60s, were all born in American Samoa — the only U.S. territory where residents are not automatically granted citizenship at birth. Prosecutors say they falsely claimed American citizenship when registering or trying to vote. The cases are highlighting another side of the debate over exaggerated allegations of voting by noncitizens, as well as what it means to be born on American soil, as President Donald Trump tries to redefine birthright citizenship by ending it for children of people who are in the country illegally. Here's what to know about the prosecutions in Alaska and the status of American Samoans when it comes to voting. What is the Alaska case about? The investigation began after Tupe Smith, a mom in the cruise-ship stop of Whittier, decided to run for a vacant seat on the regional school board in 2023. She was unopposed and won with about 95% of the vote. That's when she learned she wasn't allowed to hold public office because she wasn't a U.S. citizen. Smith says she knew she wasn't allowed to vote in federal elections but thought she could vote in local or state races, and that she never would have voted if she knew it wasn't legal. She says she told elections workers that she was a U.S. national, not a citizen, and was told to check a box saying she was a citizen anyway. About 10 months later, troopers returned to Whittier and issued court summonses to her husband and nine other American Samoans. While Smith appeals the charges against her, the state filed charges against the others in April. The state argues that Smith's false claim of citizenship was intentional, and her claim to the contrary was undercut by the clear language on the voter application forms she filled out in 2020 and 2022. The forms said that if the applicant did not answer yes to being over 18 years old and a U.S. citizen, 'do not complete this form, as you are not eligible to vote.' Why can't American Samoans vote in the U.S.? The 14th Amendment to the Constitution promises U.S. citizenship to those born on U.S. soil and subject to its jurisdiction. American Samoa has been U.S. soil since 1900, when several of its chiefs ceded their land and vowed allegiance to the United States. For that reason, Smith's lawyers argue, American Samoans must be recognized as U.S. citizens by birthright, and they should be allowed to vote in the U.S. But the islands' residents have never been so considered — Congress declined to extend birthright citizenship to American Samoa in the 1930s — and many American Samoans don't want it. They worry that it would disrupt their cultural practices, including communal land ownership. The 10th U.S. Circuit Court of Appeals cited that in 2021 when it declined to extend automatic citizenship to those born in American Samoa, saying it would be wrong to force citizenship on those who don't want it. The Supreme Court declined to review the decision. People born in all other U.S. territories — Puerto Rico, the U.S. Virgin Islands, the Northern Mariana Islands and Guam — are U.S. citizens. They can vote in U.S. elections if they move to a state. American Samoans can participate in local elections on American Samoa, including for a nonvoting representative in Congress. Have other states prosecuted American Samoans for trying to vote? Supporters of the American Samoans in Whittier have called the prosecutions unprecedented. One of Smith's attorneys, Neil Weare, suggested authorities are going after 'low-hanging fruit' in the absence of evidence that illegal immigrants frequently cast ballots in U.S. elections. Even state-level investigations have found voting by noncitizens to be exceptionally rare. In Oregon, officials inadvertently registered nearly 200 American Samoan residents to vote when they got their driver's licenses under the state's motor-voter law. Of those, 10 cast ballots in an election, according to the Oregon Secretary of State's office, but officials found they did not intend to break the law and no crime was committed. In Hawaii, one resident who was born in American Samoa, Sai Timoteo, ran for the state Legislature in 2018 before learning she wasn't allowed to hold public office or vote. She also avoided charges. Is there any legislation to fix this? American Samoans can become U.S. citizens — a requirement not just for voting, but for certain jobs, such as those that require a security clearance. However, the process can be costly and cumbersome. Given that many oppose automatic citizenship, the territory's nonvoting representative in Congress, Aumua Amata Coleman Radewagen, has introduced legislation that would streamline the naturalization of American Samoans who do wish to become U.S. citizens. The bill would allow U.S. nationals in outlying U.S. territories — that is, American Samoa — to be naturalized without relocating to one of the U.S. states. It would also allow the Department of Homeland Security to waive personal interviews of U.S. nationals as part of the process and to reduce fees for them. ___ Bohrer reported from Juneau, Alaska, and Johnson from Seattle.
Hamilton Spectator
29 minutes ago
- Hamilton Spectator
Here's what to know about American Samoans in Alaska who are being prosecuted after trying to vote
WHITTIER, Alaska (AP) — FOR MOVEMENT AT 9 A.M. EASTERN ON SATURDAY, 6/7. WITH VOTING-AMERICAN SAMOANS MAINBAR. They were born on U.S. soil, are entitled to U.S. passports and allowed to serve in the U.S. military, but 11 people in a small Alaska town are facing criminal charges after they tried to participate in a fundamental part of American democracy: voting. The defendants, who range in age from their 20s to their 60s, were all born in American Samoa — the only U.S. territory where residents are not automatically granted citizenship at birth. Prosecutors say they falsely claimed American citizenship when registering or trying to vote. The cases are highlighting another side of the debate over exaggerated allegations of voting by noncitizens , as well as what it means to be born on American soil, as President Donald Trump tries to redefine birthright citizenship by ending it for children of people who are in the country illegally. Here's what to know about the prosecutions in Alaska and the status of American Samoans when it comes to voting. What is the Alaska case about? The investigation began after Tupe Smith, a mom in the cruise-ship stop of Whittier, decided to run for a vacant seat on the regional school board in 2023. She was unopposed and won with about 95% of the vote. That's when she learned she wasn't allowed to hold public office because she wasn't a U.S. citizen. Smith says she knew she wasn't allowed to vote in federal elections but thought she could vote in local or state races, and that she never would have voted if she knew it wasn't legal. She says she told elections workers that she was a U.S. national, not a citizen, and was told to check a box saying she was a citizen anyway. About 10 months later, troopers returned to Whittier and issued court summonses to her husband and nine other American Samoans. While Smith appeals the charges against her, the state filed charges against the others in April. The state argues that Smith's false claim of citizenship was intentional, and her claim to the contrary was undercut by the clear language on the voter application forms she filled out in 2020 and 2022. The forms said that if the applicant did not answer yes to being over 18 years old and a U.S. citizen, 'do not complete this form, as you are not eligible to vote.' Why can't American Samoans vote in the U.S.? The 14th Amendment to the Constitution promises U.S. citizenship to those born on U.S. soil and subject to its jurisdiction. American Samoa has been U.S. soil since 1900, when several of its chiefs ceded their land and vowed allegiance to the United States. For that reason, Smith's lawyers argue, American Samoans must be recognized as U.S. citizens by birthright, and they should be allowed to vote in the U.S. But the islands' residents have never been so considered — Congress declined to extend birthright citizenship to American Samoa in the 1930s — and many American Samoans don't want it. They worry that it would disrupt their cultural practices, including communal land ownership. The 10th U.S. Circuit Court of Appeals cited that in 2021 when it declined to extend automatic citizenship to those born in American Samoa, saying it would be wrong to force citizenship on those who don't want it. The Supreme Court declined to review the decision. People born in all other U.S. territories — Puerto Rico, the U.S. Virgin Islands, the Northern Mariana Islands and Guam — are U.S. citizens. They can vote in U.S. elections if they move to a state. American Samoans can participate in local elections on American Samoa, including for a nonvoting representative in Congress. Have other states prosecuted American Samoans for trying to vote? Supporters of the American Samoans in Whittier have called the prosecutions unprecedented. One of Smith's attorneys, Neil Weare, suggested authorities are going after 'low-hanging fruit' in the absence of evidence that illegal immigrants frequently cast ballots in U.S. elections. Even state-level investigations have found voting by noncitizens to be exceptionally rare. In Oregon, officials inadvertently registered nearly 200 American Samoan residents to vote when they got their driver's licenses under the state's motor-voter law. Of those, 10 cast ballots in an election, according to the Oregon Secretary of State's office, but officials found they did not intend to break the law and no crime was committed. In Hawaii, one resident who was born in American Samoa, Sai Timoteo, ran for the state Legislature in 2018 before learning she wasn't allowed to hold public office or vote. She also avoided charges. Is there any legislation to fix this? American Samoans can become U.S. citizens — a requirement not just for voting, but for certain jobs, such as those that require a security clearance. However, the process can be costly and cumbersome. Given that many oppose automatic citizenship, the territory's nonvoting representative in Congress, Aumua Amata Coleman Radewagen, has introduced legislation that would streamline the naturalization of American Samoans who do wish to become U.S. citizens. The bill would allow U.S. nationals in outlying U.S. territories — that is, American Samoa — to be naturalized without relocating to one of the U.S. states. It would also allow the Department of Homeland Security to waive personal interviews of U.S. nationals as part of the process and to reduce fees for them. ___ Bohrer reported from Juneau, Alaska, and Johnson from Seattle. Error! Sorry, there was an error processing your request. There was a problem with the recaptcha. Please try again. You may unsubscribe at any time. By signing up, you agree to our terms of use and privacy policy . This site is protected by reCAPTCHA and the Google privacy policy and terms of service apply. Want more of the latest from us? Sign up for more at our newsletter page .
Hamilton Spectator
29 minutes ago
- Hamilton Spectator
A US territory's colonial history emerges in state disputes over voting and citizenship
WHITTIER, Alaska (AP) — Squeezed between glacier-packed mountains and Alaska's Prince William Sound, the cruise-ship stop of Whittier is isolated enough that it's reachable by just a single road, through a long, one-lane tunnel that vehicles share with trains. It's so small that nearly all its 260 residents live in the same 14-story condo building. But Whittier also is the unlikely crossroads of two major currents in American politics: fighting over what it means to be born on U.S. soil and false claims by President Donald Trump and others that noncitizen voter fraud is widespread. In what experts describe as an unprecedented case, Alaska prosecutors are pursuing felony charges against 11 residents of Whittier, most of them related to one another, saying they falsely claimed U.S. citizenship when registering or trying to vote. The defendants were all born in American Samoa , an island cluster in the South Pacific roughly halfway between Hawaii and New Zealand. It's the only U.S. territory where residents are not automatically granted citizenship by virtue of having been born on American soil, as the Constitution dictates. Instead, by a quirk of geopolitical history, they are considered 'U.S. nationals' — a distinction that gives them certain rights and obligations while denying them others. American Samoans are entitled to U.S. passports and can serve in the military. Men must register for the Selective Service. They can vote in local elections in American Samoa but cannot hold public office in the U.S. or participate in most U.S. elections. Those who wish to become citizens can do so, but the process costs hundreds of dollars and can be cumbersome. 'To me, I'm an American. I was born an American on U.S. soil,' said firefighter Michael Pese, one of those charged in Whittier. 'American Samoa has been U.S. soil, U.S. jurisdiction, for 125 years. According to the supreme law of the land, that's my birthright.' Confusion over voting is not just an Alaska problem The status has created confusion in other states, as well. In Oregon, officials inadvertently registered nearly 200 American Samoan residents to vote when they got their driver's licenses under the state's motor-voter law. Of those, 10 cast ballots in an election, according to the Oregon Secretary of State's office. Officials there determined the residents had not intended to break the law and no crime was committed. In Hawaii, one resident who was born in American Samoa, Sai Timoteo, ran for the state Legislature in 2018 before learning she wasn't allowed to hold public office or vote. She had always considered it her civic duty to vote, and the form on the voting materials had one box to check: 'U.S. Citizen/U.S. National.' 'I checked that box my entire life,' she said. She also avoided charges, and Hawaii subsequently changed its form to make it more clear. Is U.S. citizenship a birthright? Amid the storm of executive orders issued by Trump in the early days of his second term was one that sought to redefine birthright citizenship by barring it for children of parents who are in the U.S. unlawfully. Another would overhaul how federal elections are run, among other changes requiring voters to provide proof of citizenship. Courts so far have blocked both orders . The Constitution says that 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.' It also leaves the administration of elections to the states . The case in Whittier began with Pese's wife, Tupe Smith. After the couple moved to Whittier in 2018, Smith began volunteering at the Whittier Community School, where nearly half of the 55 students were American Samoan — many of them her nieces and nephews. She would help the kids with their English, tutor them in reading and cook them Samoan dishes. In 2023, a seat on the regional school board came open and she ran for it. She was the only candidate and won with about 95% of the vote. One morning a few weeks later, as she was making her two children breakfast, state troopers came knocking. They asked about her voting history. She explained that she knew she wasn't allowed to vote in U.S. presidential elections, but thought she could vote in local or state races. She said she checked a box affirming that she was a U.S. citizen at the instruction of elections workers because there was no option to identify herself as a U.S. national, court records say. The troopers arrested her and drove her to a women's prison near Anchorage. She was released that day after her husband paid bail. 'When they put me in cuffs, my son started crying,' Smith told The Associated Press. 'He told their dad that he don't want the cops to take me or to lock me up.' A question of intent About 10 months later, troopers returned to Whittier and issued court summonses to Pese, eight other relatives and one man who was not related but came from the same American Samoa village as Pese. One of Smith's attorneys, Neil Weare, grew up in another U.S. territory, Guam, and is the co-founder of the Washington-based Right to Democracy Project, whose mission is 'confronting and dismantling the undemocratic colonial framework governing people in U.S. territories.' He suggested the prosecutions are aimed at 'low-hanging fruit' in the absence of evidence that illegal immigrants frequently cast ballots in U.S. elections. Even state-level investigations have found voting by noncitizens to be exceptionally rare. 'There is no question that Ms. Smith lacked an intent to mislead or deceive a public official in order to vote unlawfully when she checked 'U.S. citizen' on voter registration materials,' he wrote in a brief to the Alaska Court of Appeals last week, after a lower court judge declined to dismiss the charges. Prosecutors say her false claim of citizenship was intentional, and her claim to the contrary was undercut by the clear language on the voter application forms she filled out in 2020 and 2022. The forms said that if the applicant did not answer yes to being over 18 years old and a U.S. citizen, 'do not complete this form, as you are not eligible to vote.' A dispute entangled with a colonial past The unique situation of American Samoans dates to the 19th century, when the U.S. and European powers were seeking to expand their colonial and economic interests in the South Pacific. The U.S. Navy secured the use of Pago Pago Harbor in eastern Samoa as a coal-refueling station for military and commercial vessels, while Germany sought to protect its coconut plantations in western Samoa. Eventually the archipelago was divided, with the western islands becoming the independent nation of Samoa and the eastern ones becoming American Samoa, overseen by the Navy. The leaders of American Samoa spent much of the late 19th and early 20th centuries arguing that its people should be U.S. citizens. Birthright citizenship was eventually afforded to residents of other U.S. territories — Puerto Rico, the U.S. Virgin Islands, Guam and the Northern Mariana Islands. Congress considered it for American Samoa in the 1930s, but declined. Some lawmakers cited financial concerns during the Great Depression while others expressed patently racist objections, according to a 2020 article in the American Journal of Legal History. Supporters of automatic citizenship say it would particularly benefit the estimated 150,000 to 160,000 nationals who live in the states, many of them in California, Hawaii, Washington, Oregon, Utah and Alaska. 'We pay taxes, we do exactly the same as everybody else that are U.S. citizens,' Smith said. 'It would be nice for us to have the same rights as everybody here in the states.' Legal questions over status to be tested anew But many in American Samoa eventually soured on the idea, fearing that extending birthright citizenship would jeopardize its customs — including the territory's communal land laws. Island residents could be dispossessed by land privatization, not unlike what happened in Hawaii , said Siniva Bennett, board chair of the Samoa Pacific Development Corporation, a Portland, Oregon-based nonprofit. 'We've been able to maintain our culture, and we haven't been divested from our land like a lot of other indigenous people in the U.S.,' Bennett said. In 2021, the 10th U.S. Circuit Court of Appeals declined to extend automatic citizenship to those born in American Samoa, saying it would be wrong to force citizenship on those who don't want it. The Supreme Court declined to review the decision. Several jurisdictions across the country, including San Francisco and the District of Columbia, allow people who are not citizens to vote in certain local elections. Tafilisaunoa Toleafoa, with the Pacific Community of Alaska, said the situation has been so confusing that her organization reached out to the Alaska Division of Elections in 2021 and 2022 to ask whether American Samoans could vote in state and local elections. Neither time did it receive a direct answer, she said. 'People were telling our community that they can vote as long as you have your voter registration card and it was issued by the state,' she said. Finally, last year, Carol Beecher, the head of the state Division of Elections, sent Toleafoa's group a letter saying American Samoans are not eligible to vote in Alaska elections. But by then, the voting forms had been signed. 'It is my hope that this is a lesson learned, that the state of Alaska agrees that this could be something that we can administratively correct,' Toleafoa said. 'I would say that the state could have done that instead of prosecuting community members.' ___ Bohrer reported from Juneau, Alaska, and Johnson from Seattle. Claire Rush in Portland, Oregon, and Jennifer Sinco Kelleher in Honolulu contributed to this report. Error! Sorry, there was an error processing your request. There was a problem with the recaptcha. Please try again. You may unsubscribe at any time. By signing up, you agree to our terms of use and privacy policy . This site is protected by reCAPTCHA and the Google privacy policy and terms of service apply. Want more of the latest from us? 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