Habeas Corpus
Hey y'all! Taking another "break" with a short letter this week, but that doesn't mean this isn't an important subject. It's possibly the most immediately alarming subject we've ever spoken about.
About two weeks ago, almost off-handedly, Stephen Miller let the press know that the Trump administration is considering suspending habeas corpus, which is a foundational but somewhat nebulous right afforded people in the United States and many (most?) nations–pretty much the basis for how justice systems work in the modern world. Habeas corpus is the right to a trial to contest detention, and while it's not technically a right enshrined in the Constitution, it is listed by name as a privilege that shall not be infringed upon without extreme cause–such as revolution or invasion. It is a phenomenally important idea that has only been infringed upon nationwide once before, by Abraham Lincoln during the Civil War.
A lot of the hemming and hawing you will see surrounding this idea is whether or not Trump "can" suspend habeas corpus. This is a silly argument. By the rules as written–of course not. But in reality? Of course he can. Even if he doesn't do it officially, he can still do it. He can do it because he's already trampled due process (and, effectively, habeas corpus) with the arrest and deportation of Kilmar Albrego Garcia, among others, and the courts have wrung their hands and wagged their fingers but Albrego Garcia is still in CECOT in El Salvador. He will suspend it on a person-by-person basis at first, and it will effectively be suspended for everyone, because the courts will do nothing as this is a classic "and because I wasn't a ____" situation. It is already too late once it has been done, and it has all but been done.
A Moral Failure and a Danger
The lack of complete outrage at the deportation of Albrego Garcia and others is a grand failure of the leaders of this country. It's our failure, too. But it's also the toppling of a first domino in a predictable succession. It's disgusting to speak this way, but this is how it is: if Albrego Garcia wasn't enough, someone else is next who will more closely resemble you. And that will continue until, eventually, it is you. So you should be alarmed.
To spell this out, what the suspension of habeas corpus means to you on the ground is that there is no guarantee you will see your day in court if you are arrested–and thus there is no guarantee you will ever get out. If you get arrested, for anything, it may be forever. This particular Rubicon has effectively already been crossed for immigrants by ICE. It comes with two very swift corollaries:
- If you may never be un-arrested, it behooves you to fight arrest with everything you've got.
- The cops know this, and will act accordingly.
Encounters with the police will become much more dangerous as habeas corpus falls apart for broader sections of the populace. They already assume any encounter can put them in danger, but now they will be even more reckless with our lives in order to ostensibly protect theirs. More importantly, you may genuinely be better off fighting the cops than complying (which is in no way my legal advice at this time). It is one thing for us to know and understand that the police are simply an occupying army, but to finally be in a situation that forces their treatment as such is, I suspect, a new frontier for most of the readers of this newsletter.
This is a classic authoritarian move, here. I know Trump acts like he doesn't know what he's talking about more than half the time, but it doesn't matter because people do what he says. It doesn't matter that he's wiping his ass with the country's founding documents–what matters is that no one disabuses him of that notion after the fact. It doesn't change my opinion on whether or not we can win this conflict and hopefully eke out a better world along with it, but it does underscore my belief that this is a dangerous, dangerous time. We should be working to make moves while we can, and before our hand is forced.