DHS secretary misstates meaning of habeas corpus under Senate scrutiny

Homeland Security Director Kristi Noem, under sharp questioning from Democratic senators during a Tuesday hearing, incorrectly described habeas corpus as a presidential authority to deport individuals.

Noem was on Capitol Hill to testify before the Senate Homeland Security and Governmental Affairs Committee on the Department of Homeland Security’s budget for fiscal year 2026. She was asked by Sen. Maggie Hassan, D-N.H., to define “habeas corpus.”

The secretary responded: “Habeas corpus is a constitutional right that the president has to be able to remove people from this country.”

In reality, habeas corpus is a bedrock constitutional legal principle that safeguards individuals from unlawful imprisonment by enabling them to petition the court to review the legality of their detention.

Responding, Senator Hassan corrected the secretary, stating, “Habeas corpus is the foundational right that separates free societies like America from police states like North Korea.” She then pressed Noem, asking whether she supports “the core protection” of habeas corpus — that the government must present a public justification to detain or imprison someone.

“Yes, I support habeas corpus,” Noem replied. “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.”

Article I, Section 9 of the U.S. Constitution prohibits the suspension of habeas corpus “unless when in Cases of Rebellion or Invasion the public Safety may require it.”

Brandon Garrett, a Duke University professor of law, says Noem’s comments represent the latest in “a series of recent misstatements by federal officials regarding the basic constitutional protections of habeas corpus.”

“The Suspension Clause is quite restrictive permitting Congress to suspend habeas corpus only in exceptional circumstances. The President cannot suspend the writ,” he says.

Speaking earlier this month, White House adviser Stephen Miller said the administration was “looking at” ways to end due process protections for undocumented migrants, possibly by invoking a 1798 law known as the Alien Enemies Act.

“The Constitution is clear, and that, of course, is the supreme law of the land, that the privilege of the writ of habeas corpus can be suspended at a time of invasion,” Miller told reporters.

However, the Supreme Court on Friday granted a preliminary injunction extending a pause on deportations of Venezuelan immigrants in northern Texas under the Alien Enemies Act.

In 1861, President Abraham Lincoln ordered the suspension of the writ of habeas corpus, arguing that it was necessary to protect the Union from sabotage by Confederate sympathizers. The Supreme Court subsequently ruled that the president lacked that authority. It wasn’t until 1863 that Congress formalized Lincoln’s order by passing the Habeas Corpus Suspension Act.

President Franklin D. Roosevelt’s executive order to detain thousands of Americans of Japanese origin during World War II was at the time also challenged on grounds that it unlawfully denied habeas corpus to the detainees.