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“Vexation:” A Short History of Habeas Corpus in America

The Scene, Act 1

Imagine driving down Fredericks Hall Road in the early hours heading to work, sipping coffee, a black suburban following too close for comfort. Minutes later a sheriff’s deputy car pulls in between you and the suburban, turns on his or her emergency lights.  You pull over into the B&L Mart parking lot, the suburban following the deputy’s car into the lot.  

Out jump agents in camouflage vests, long guns at the ready.  They order you out of the car, pushing you to the ground, cuffing you, your body violated in every sense as they search you.  Before you know it your whisked away in an unmarked van to a non-descript detention center.  Your “Why am I being arrested?” protests ignored. Demands for a lawyers rebuffed. No Miranda warnings. Requests to make phone calls denied.  Within hours a flight, then a prison in a foreign country.

At best this sounds like a screenplay for a cheap, low budget film.  At worst, a nightmare.  Unfortunately, it’s the latter.  The Trump administration has used similar tactics repeatedly over several weeks.  One Maryland man, who was in the U.S. on protected status, was grabbed from the streets, detained, denied due process, and ended up in an El Salvadoran maximum security prison.  The government admitted later he was detained because of an “administrative error,” adding it was powerless to have him returned to the U.S. and his American wife and 5-year-old autistic child.   Several other persons legally in the U.S. have also been individually detained, imprisoned, and marked for deportation without due process.  

In a larger multi-state operation, hundreds of persons were detained and deported during arrests allegedly targeting Venezuelan gang members when Trump invoked the Alien Enemies Act of 1798.  Despite a federal judge’s order to stop the deportations pending court hearings, even ordering the return of flights in progress, the government willfully ignored the order and let the deportations proceed apace, citing that some of the planes were over international waters and therefore beyond their jurisdiction to recall. 

Newsfeeds showed the deportees led off the planes in shackles, moved from point to point by soldiers forcibly doubling them over, heads shaved for TV crew consumption.  A chilling display of dehumanization reminiscent of Nazi deathcamps.  

At the core of these detentions is the secretive nature of the arrests and reluctance and outright vexatious refusal to respond to federal judges’ orders to produce the body in court: The Writ of Habeas Corpus.

Habeas Corpus

Habeas Corpus’s roots go back to Anglo-Saxon times, evolving after the Norman Invasion in 1066, enshrined in the 39th clause of the Magna Carta in the 13th century, and in 1679, put into English law with the Habeas Corpus Act.  The reason for the 1679 Act, from what I can gather from its text, is that Sheriffs and others were claiming not to have received or misplaced writs of Habeas Corpus, causing “great delayes” and “long detaining’s in Prison….to their great charge and vexation.”   Sound familiar to Trump’s government lawyers?

You must put the 1679 Act within the 17th century’s context of the power politics between King and Parliament in England, eventually being settled as part of the Glorious Revolution of 1688/89 and the birth of the English Bill of Rights.  One mustn’t lose one’s head over this history (a little pun off the top of my head), but it is worth recalling.

Americans thought it such a great idea they put it in our Constitution, not once by twice.  It can only be suspended in cases of invasion or rebellion.   The 1789 legislative act creating America’s judicial system gave federal judges the right to issue writs of Habeas Corpus but limited to federal matters.  This power to issue Habeas Corpus writs was expanded after the Civil War in 1867, to include State detentions.  

Rebellion

At the outset of the Civil War, President Lincoln suspended Habeas Corpus in certain regions in April 1861. After the arrest of Marylander John Merryman, who was spirited off to a military fort, Supreme Court Chief Justice Roger Taney (of Dred Scott infamy) — who also oversaw Maryland’s federal circuit court – issued a writ of Habeas Corpus, demanding Merryman be brought before a judge.  Taney argued that only Congress can suspend Habeas Corpus, not the President.  Lincoln refused.

Lincoln’s Proclamation 94, issued in 1862, further expanded the geographic scope of the suspension of Habeas Corpus.  Congress debated the issue of whether the president or congress can suspend Habeas Corpus, as the Constitution is silent on this matter, but came to no definitive conclusion.  In 1863, nonetheless, Congress passed an Act Suspending Habeas Corpus to give Lincoln’s acts legal cover.  Lincoln signed the bill.

Alien Enemies Act 1798

Unfortunately, the Alien Enemies Act has been used to short circuit Habeas Corpus.  The Act has several parts, it includes a declaration of war, or invasion or predatory incursion by a foreign nation or government.  Only then can aliens of these invading nations be rounded up, or as the act states, “shall be liable to be apprehended, restrained, secured and removed as enemy aliens.”  The west coast roundup of Japanese aliens and citizens of Japanese ancestry and their interment in prison camps during the Second World War is one example.  

The round up of alleged Venezuelan gang members under the Alien Enemies Act is absurd.    The gang is not a nation state, it is not part of an invading army or force, and a state of war between the U.S. and Venezuela does not exist.  And by the way, only Congress can declare war.

The War Mindset

This recent short circuiting of Habeas Corpus reveals the mindset of Trump and his administration.  They are at war with parts of America.  And they are using war-time emergency powers such as the Alien Enemies Act to dilute and nullify the Constitution.   Trump is on a war footing where no war exists, and Americans need to take notice.  If you think he will stop at non-citizens or legal permanent residents, I would think long and hard about that proposition.  Just as insidious are those lining up to inform on folks.  Are we heading to a police state?

Think about our neighbors.  Migrants live and work in our community.  Their kids go to our schools. They are a vibrant part of our community and economy.  They build and repair homes, own businesses such as restaurants, gas stations, construction and landscape companies. They pay taxes and shop at local stores. They have the same right to the constitutional protections that we enjoy from unreasonable search and seizure, due process, their day in court.   They should not have to live in fear of disappearing from Fredricks Hall Road and ending up in an El Salvadoran maximum security prison.

Lastly, what can we do?  We have agency, so talk to your representative and express your concerns.  Stress the need for legislative reform.  Ask them to introduce reform bills.  I would start with repealing the Alien Enemies Act and clarify through legislative action who can suspend Habeas Corpus, Congress or the President.  Talk to your neighbors and friends.  Let them know what is going on and what is at stake.

For those on the other side of the aisle who think that Trump is doing is great, I ask you to think down the road.  Restraining a president with expanded Kingly powers will be like holding a wolf by the ears.  The next president may not like you. I hope your Spanish is good.

Lost and Found: Where in the World is John McGuire

Yesterday, the House of Representative’s DOGE Subcommittee, chaired by Marjorie Taylor Greene, provided a WWE style smackdown of senior executives from National Public Radio and Public Broadcasting Service.  The usual theater, chair shots, kissing up to Fox News, bullying, the outcome preordained. 

John McGuire, Virginia’s 5th Congressional District Representative, and a member of the DOGE Subcommittee was nowhere in sight.  Maybe he was teleworking?  He did not make an appearance (from what I can tell) much less ask any questions.  In an almost 3-hour hearing you would expect him to show up and ask a question or two.  He didn’t.  Was he getting his nails done?  Maybe he was on some Signal group chat. The dais where the representatives lord over the witnesses was mostly empty throughout the hearing, although I must admit, that there were more chairs than members on the Subcommittee.

It was an important hearing.  It was federal funding life or death for NPR and PBS.  Looks like death.  If the Subcommittee had its way, according to Greene, they would never get another penny of taxpayers’ money.  McGuire, I suspect would agree with the Subcommittee’s sentiments.

What galls me is that federal workers have been excoriated for allegedly not showing up for work or being lazy or wasteful, by folks like McGuire.  Justification for purging tens of thousands from federal government payrolls. The usual claptrap.  So, where was he on Wednesday?  My tax dollars, and your tax dollars, pay his salary, and I expect and demand him to put in the time and show up for committee hearings, ask questions when important issues are being discussed.

Please call or write Mr. McGuire and ask where the hell he was yesterday and why wasn’t he at the hearing to ask questions.  Finally, tell him to support NPR and PBS if you are so inclined.

Lead, Follow, or Get Out of the Way

This past Sunday Democrats held an innovative multi-county town hall meeting in Goochland County, Virginia.  The invited guest, Rep. John McGuire (R), who represents Virginia’s 5th congressional district, did not accept the offer to speak to his beloved constituents.  In his place stood a cardboard avatar of McGuire, sporting a long, long, long, red tie, cartoon speech balloons emanated from his head. It reminded me of 18th century satirical political cartoons by William Hogarth.  

It was standing room only, a spirited, eclectic gathering.  Most were women, a good number of veterans, and a few former Republicans sprinkled among us. A microcosm of rural America: farmers, veterans, small business owners, local government employees, a few ministers, a good show of teachers, retirees, and some young’uns.   Some were in their Sunday best, either coming from or going to Church.  

McGuire’s replacement avatar and speaker was a civil rights attorney from Albemarle County.  After introductions he took questions and offered observations about McGuire and directly addressed Chuck Schumer’s about face on the Continuing Resolution to fund the federal government.  I think his comments reflected the general mood of the crowd: anger and frustration at Schumer.

The overall tenor of the questions asked was one of concern, fury, and annoyance at Trump and Musk.   These concerns, anger, and frustration were not reserved only for Trump, but at national Democrat leadership in Congress as well:   Where is it?  What’s the opposition strategy?  If you did a word count of participants comments, I think “fight” would be at the top of the list.  The verb, not the noun.

My takeaways from the town hall are that folks are not only worried about Trump’s reckless assault on our Constitution but also troubled by the lack of a will to fight and take risks by national Democratic Party leadership.  Schumer’s about face and capitulation, being Exhibit A.   The lack of an articulated strategy to respond to the erosion of democracy being Exhibit B.  No mid-term election plan, Exhibit C. 

It seems folks feel rudderless in a tempest, watching the ship of state drift closer to the shoals, the captain nowhere to be found, lifeboats swept away.  I imagine leaders in local Democratic party organizations are themselves frustrated at the national leadership.  I see the fatigue in their eyes and hear it in their voices. They are leaning hard into the the headwinds trying to thwart our democracy. They deserve better from national leadership.

I get the sense that folks desperately want to participate in meaningful opposition but only have timeworn responses in their tool kit:  write letters; email or call your representatives; show up for town halls; boycott businesses that support Trump.  These measures seem futile, like using little adhesive band aids when one needs a trauma kit, a tourniquet to keep America’s democracy from bleeding out. 

When I found out a day or two after the town hall that Schumer cancelled his tour to hawk his new book because of security reasons, my first thought was, ‘book tour?” WTF? Really, Rome is burning, and he is going on a book tour.  What doesn’t he get?  It just highlights that the intellectual framework that guides his notion of being a Senator is dated, like orange shag carpets and lava lamps.  He clings to a nostalgic past to the detriment of our future. 

No need to hit the panic button, but time is not on our side, given Trump’ frantic pace to undo democracy. The mid-terms are too far off to make any real, immediate course corrections.  The national Democratic Party leadership needs to get off its’ ass.  Trust us.  We will do the right thing if given the chance, but it requires tough national leadership that is willing to take risks, carry the flag at the front.  At my infantry basic course our motto was:  “Lead, follow, or Get out of the Way.”  Mr. Schumer, get out of the way.     

No-Show Schumer:  Capitulation in the Age of a Spinless Democratic Party

Chuck Schumer’s astonishing flip flop to vote for the Continuing Resolution to fund the government through the remainder of fiscal year 2025 was if anything predictable.  It highlights Democrat’s Achilles Heel: No convictions.  What do they stand for?   Nothing, it appears.  Nothing they are willing to sacrifice for.

As America struggled with Trump’s blitzkrieg against liberal democracy during the first weeks of his presidency, I was disappointed in the silence of Democratic leaders.  A lack of any coordinated response.  I asked myself, “does America have a Navalny?”  We used to.  Folks like Martin Luther King Jr. or Euguene Debs or Lucy Burns.  Folks willing to go to jail for a principle or closely held principle. If you don’t know who Navalny is, or was, you should.  He was a Russian opposition leader and Putin’s nemesis.  Jailed and poisoned, he managed to leave Russia for medical treatment, and then returned, facing imprisonment and almost certain life in prison or death.  He was arrested on arrival, subjected to a show trial, convicted and imprisoned.  He died in 2024 at age 47.   

I was unaware of his last letter.  While watching “Letters Live” on Youtube, and by chance, I stumbled upon actor Benedict Cumberbatch reading Alexi Navalny’s last letter.  Chance being a weird word in a world of algorithms deciding what you see online.  

Navalny starts the letter by explaining why he returned:  “It’s actually very simple,” he wrote. “I have my country and my convictions and I don’t want to renounce either my country or my convictions.”  He added, “If your convictions are worth anything, you should be ready to standup for them, and, if necessary, make some sacrifices.  And if you’re not ready, then you have no convictions at all. You just think you do.  But those are not convictions and principles, just thoughts in your head.”  Navalny’s words about conviction and principle struck home. They were the confessions of a dying man.  They weren’t trivial academic utterances of someone sitting in a leather chair, safe, and on a third scotch.  This was real.

Chuck Schumer’s  words ring hollow, he has no conviction or principle.  And he is 79.  Neither it seems does the other Democratic Party leaders.  While I disagree with Trump and his party on most everything, they at least have some sort of driving conviction and principle and are willing to take risks, make mistakes, even make sacrifices.  

Americans can at times lose their ways, but deep down they have an innate common sense.  They know Trump is a con and a grifter, but to many he’s their grifter.  On another level, they hate spineless shits who are afraid of their own shadows even more.  They lose respect for those who don’t stand up for their own, don’t stand up for their convictions or principles, however, tainted or screwed up.  That is an unforgiveable sin. The Democratic Leader are just such spineless shits.