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TRUMP WOULD TORCH MAGNA CARTA  
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James Baratta
May 14, 2025
The American Prospect
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_ For centuries, the writ of habeas corpus—a fundamental protection
against unlawful imprisonment—has remained a core fixture of
democratic governance. Suspending it would defy the Constitution, but
Trump is weighing his options. _

A crowd gathers in Foley Square, outside the Manhattan federal court,
in support of Mahmoud Khalil, March 12, 2025, in New York., Photo:
Stefan Jeremiah/AP // The American Prospect

 

Under the Constitution and federal law, individuals may challenge the
legality of their detention in a court of law by filing a writ of
habeas corpus. It is perhaps the most important protection preventing
state actors from arbitrarily tossing people in jail indefinitely. At
its core, habeas corpus provides a structural ballast in the
preservation of liberal democratic values, and extends to both
citizens and noncitizens. In addition to being one of the few rights
mentioned explicitly in the original body of the Constitution, habeas
is one of the oldest rights in the Anglo-American common-law
tradition, dating back
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before the Magna Carta of 1215, and supported by hundreds of years of
legal precedent.

On May 9, White House deputy chief of staff Stephen Miller said the
Trump administration is “actively looking at” whether to suspend
habeas corpus. According to Miller, “a lot of it depends on whether
the courts do the right thing or not.” The offhand yet alarming
comments come as the Trump administration continues to fight a losing
battle in the courts, which have lodged a wrench in its mass
deportation plans.

The Constitution specifies that the right of habeas corpus “shall
not be suspended, unless when in Cases of Rebellion or Invasion the
public Safety may require it,” though it does not specify any
procedure for doing so.

“The Great Writ,” as it is traditionally called, has been
suspended four times since the ratification of the Constitution, each
of them involving actual rebellions or invasions, which demonstrate
the thorny practical and moral issues such situations create. For
instance, as the National Constitution Center explains
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President Abraham Lincoln unilaterally suspended habeas corpus in the
early days of the Civil War in 1861, in response to threats against
United States troops in Maryland that threatened to cut off
Washington, D.C. One slave owner who had blown up important bridges
was arrested and held without trial.

In response, Supreme Court Chief Justice Roger B. Taney, author of the
infamous _Dred Scott v. Sandford_ decision, ruled in his capacity as
a circuit court judge (as justices were required to serve on occasion
in those days) in _Ex Parte Merryman_ that only Congress has the
authority to suspend habeas corpus. Lincoln ignored the ruling,
arguing that because Congress was in recess, allowing traitors to run
free during open rebellion was senseless. It “can not be believed
the framers of the instrument intended that in every case the danger
should run its course until Congress could be called together, the
very assembling of which might be prevented, as was intended in this
case, by the rebellion,” he wrote in response. Still, Congress later
approved of Lincoln’s action with the Habeas Corpus Suspension Act
of 1863. 

“It is the fundamental job of the judiciary to stand up to this kind
of government manipulation of our basic rights.”

During the Reconstruction Era, President Ulysses S. Grant secured
congressional authorization to suspend habeas corpus in parts of South
Carolina in which the Ku Klux Klan and other white supremacist groups
were attempting to crush an incipient multiracial democracy through
terrorist threats and violence. Grant did crush the Klan, though,
alas, Reconstruction-era democracy eventually fell to such tactics.
The Roosevelt administration also suspended it in Hawaii after the
bombing of Pearl Harbor in 1941.

The last example is less savory. In 1905, military governors suspended
habeas corpus in the Philippines to quash an indigenous uprising
against American colonialism.

One may argue about the appropriateness of these previous suspensions.
But it is absolutely beyond question that America in 2025 is suffering
neither an invasion nor a rebellion.

In January, President Trump issued a flurry
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to invoke the Alien Enemies Act (AEA) and Immigration and Nationality
Act (INA). Earlier this month, federal courts handed down a series of
court rulings discrediting the narrative his administration has
manufactured to deport undocumented immigrants and expel legal
permanent residents for dissenting against the government. In April,
U.S. District Court Judge for the District of Colorado Charlotte N.
Sweeney issued a temporary restraining order in _D.B.U. v. Trump_,
which blocked the deportation of over 100 undocumented immigrants
detained at the U.S. Immigration and Customs Enforcement (ICE)
processing center operated by the private prison company GEO Group in
Aurora, Colorado, to El Salvador.

The detainees were held in connection with the Trump
administration’s claim that Tren de Aragua, a Venezuelan gang
implicated in a range of illicit activities by U.S. law enforcement
agencies, posed a significant threat to national security and should
be considered an invading force under the AEA. Not only is it facially
preposterous to argue that a foreign-based criminal gang operating on
American soil—a practically continuous occurrence since the mid-19th
century at least—is tantamount to invasion, but it turns out that
the vast majority of the deportees have no criminal record whatsoever
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As my colleague Maureen Tkacik explains
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the whole Tren de Aragua panic was started by a Colorado slumlord’s
PR firm, which leveraged an isolated incident of violent crime into a
phantom full-scale invasion.

Sure enough, judges have tended to view the “invasion” narrative
with skepticism. On May 6, Judge Sweeney granted a preliminary
injunction requiring the federal government to notify individuals of
their deportation at least 21 days in advance, further determining
that the Trump administration’s “argument and the authority
marshaled in support of it are unpersuasive.” Federal court judges
in New York
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concluded that such an application of the AEA exceeds the scope of the
law.

By design, the habeas defense offers protection to those belonging to
out-groups from persecution by the state, but it has never been a
panacea [[link removed]].
Historically, the Great Writ has been weaponized to uphold slavery,
undermine tribal sovereignty, and enforce discriminatory immigration
laws. Despite this, it has proved to be an instrumental tool for
political dissidents in contesting their detentions, particularly for
foreign nationals who have been retaliated against for engaging in
First Amendment–protected activities. While there have been numerous
instances of retaliation against advocates of Palestinian rights under
the Trump administration, perhaps the most high-profile habeas corpus
petition is that of lawful permanent resident and Columbia University
graduate Mahmoud Khalil.

Khalil, who is currently detained at a GEO Group–run ICE processing
center in Jena, Louisiana, was the lead negotiator for student
activists participating in the Gaza Solidarity Encampment at Columbia
University last year. As chronicled in the documentary film _The
Encampments_, the demonstration ignited a nationwide protest movement
against higher education’s complicity in the genocide being carried
out by Israel against the Palestinian people.

“The logic used by the federal government to target myself and my
peers is a direct extension of Columbia’s repression playbook
concerning Palestine,” Khalil wrote in an April 4 op-ed
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the _Columbia Spectator_. “In the 18 months since the genocidal
campaign in Gaza began, Columbia has not only refused to acknowledge
the lives of Palestinians sacrificed for Zionist settler colonialism,
but it has actively reproduced the language used to justify this
killing.”

On March 8, plainclothes agents from the Department of Homeland
Security (DHS) apprehended Khalil
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his Columbia University apartment. Since then, his lawyers have
challenged his detention in immigration court and federal court. The
immigration case, which is playing out in Louisiana, is set to proceed
after Assistant Chief Immigration Judge Jamee Comans deemed him
removable on April 11.

In the federal case, Khalil’s lawyers have filed multiple petitions
seeking his immediate release under the habeas defense. On April 29,
U.S. District Court Judge for the District of New Jersey Michael
Farbiarz ruled against the Trump administration’s request to dismiss
Khalil’s habeas corpus petition or relocate the venue for the
proceedings to Louisiana. What followed was another failed attempt by
Trump’s legal team to obtain permission to appeal the ruling, which
the Third Circuit Court of Appeals denied
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May 6.

“It is the fundamental job of the judiciary to stand up to this kind
of government manipulation of our basic rights,” Brett Max Kaufman,
senior staff attorney at the American Civil Liberties Union, said in
a statement
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“We hope the court’s order sends a strong message to other courts
around the country facing government attempts to shop for favorable
jurisdictions by moving people detained on unconstitutional
immigration charges around and making it difficult or impossible for
their lawyers to know where to seek their immediate release.”

The rationale for Khalil’s detention is more or less based on vibes
rather than actual evidence. In a memo submitted to Judge Comans on
April 10, Secretary of State Marco Rubio argued that Khalil’s
continued advocacy for Palestinian rights would undermine ongoing
policy efforts to combat antisemitism and protect Jewish students.
Rebellion or invasion that is not.

Rubio made clear his position—and that of the Trump
administration—on the movement for Palestinian rights at a press
conference in March
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“If you’re a green card holder, you’re legally in the United
States … unless you’re some student visa holder who is a
sympathizer of some terrorist organization and is running around in
our streets like a lunatic, burning down buildings and attacking
students at universities. If you’re one of these lunatics that’s
going to put on a mask over your face and break into a student union
center and harass students—we wouldn’t have let you in in the
first place.”

The Trump administration has shown its willingness to pursue “the
largest deportation operation in American history” by any means
necessary—even if that means uprooting livelihoods, using state
power to crush dissent, or defying the Supreme Court
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You don’t have to be a lawyer to understand that the president is
obligated to uphold the Constitution.

_[JAMES BARATTA is a writing fellow at The American Prospect.]_

_Read the original article at Prospect.org
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_Used with the permission. © The American Prospect
[[link removed]], Prospect.org, 2025 [[link removed]].
All rights reserved.  _

_Support the American Prospect [[link removed]]._

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* Habeas Corpus
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* Magna Carta
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* Mahmoud Khalil
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* Alien Enemies Act
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* Kilmar Armando Abrego Garcia
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* Abrego Garcia
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* Immigration
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* deportations
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* DHS
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* homeland security
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* democracy
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* Civil Rights
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* Civil Liberties
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* Constitution
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* Free Speech
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* First Amendment
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* Donald Trump
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* Trump 2.0
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