By Dr. Joseph Sansone
Mind Matters and Everything Else
May 13, 2025
The privilege of a Writ of Habeas Corpus has been suspended a few times in American history, mostly surrounding the Civil War, post Civil War Reconstruction, and World War II. Noteworthy are Lincoln's gross human rights abuses during the Civil War and shortly afterward, and the mistreatment of the Japanese civilians during World War II.
James Madison, the author of the United States Constitution argues that the privilege of Habeas Corpus can be suspended in Federals Paper no. 43. Madison included insurrections in addition to foreign invasion as a cause to suspend the privilege to Habeas Corpus. It is worth noting that James Madison, when President, even after the White House was burned down by the British, did not suspend Habeas Corpus.
"Habeas corpus" is Latin for "show the body." A Writ of Habeas Corpus is used to justify a persons imprisonment. The government must show evidence that the arrest and detainment is lawful. In other words, the government must demonstrate that it has the right to hold You, or it must release You.
This is an important legal concept as it prevents individuals from being arrested and held indefinitely without a formal charge being brought against them. The Writ of Habeas Corpus prevents a government from arresting and detaining people on a whim. This is something that happens with political prisoners across the globe throughout the ages. Recently, this was seen with the January six political prisoners after the United States government's false flag insurrection operation.
Now the Trump administration is reportedly thinking about suspending the privilege of the Writ Habeas Corpus to deal with the illegal alien invasion, this requires a measured review. By the way, I was a state chairman in one of Patrick J. Buchanan's Presidential campaigns. Back then Trump was an open borders liberal calling Buchanan a NAZI for his immigration views. So, I've understood the gravity of the situation for decades. Anyway, the Constitution states:
Article I, Section, 9 Powers Denied Congress, Clause 2 Habeas Corpus
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.
It is clear in the Constitution that the Constitution grants the government the power to suspend the Writ of Habeas Corpus. It is not clear whether this power resides in Congress, the President, or either. However, early commentary and Court statements indicated that the power was assumed to reside in Congress. It is true that Lincoln suspended the Writ of Habeas Corpus, but that was met with so much blow back that Lincoln retroactively sought and got approval from Congress.
If Trump pursued suspending the Writ of Habeas Corpus there would likely be a challenge in front of the Supreme Court of the United States as to whether the power to suspend the privilege of Habeas Corpus resides with the Congress, or the President.
This, however, is not the primary reason that I am stating that it is unconstitutional for Trump to suspend the privilege of the Writ of Habeas Corpus. There is in my opinion a larger issue at play. Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866), which is a landmark case on this issue. The decision generally asserts that the suspension of Habeas Corpus is only constitutionally permissible in extreme circumstances (e.g., rebellion or invasion, per Article I, Section 9), and even then, civilians cannot be deprived of their right to trial in civilian courts if those courts are operational. The Court emphasized that military tribunals lack jurisdiction over civilians outside active war zones where civilian courts are functioning, as this would undermine constitutional safeguards like the Fifth and Sixth Amendments (due process and trial rights). The ruling underscored that constitutional rights, including access to habeas corpus, cannot be arbitrarily curtailed for civilians in areas not under martial law.
In short, if civilian courts are open, suspending Habeas Corpus and bypassing those courts (e.g., through military tribunals) is unconstitutional. The civilian courts in the United States are operational. There is no basis to therefore suspend the Writ of Habeas Corpus for civilians in these United States.
Duncan v. Kahanamoku (327 U.S. 304, 1946) ruled that the use of military tribunals for civilians in Hawaii was unconstitutional when civilian courts were capable of functioning, echoing Ex parte Milligan. The Supreme Court clarified that the suspension of Habeas Corpus and martial law were not adequately justified by the circumstances.
Hamdi v. Rumsfeld, 542 U.S. 507 (2004) also reinforced Milligan regarding enemy combatants and directly addressed pre-trial detention, holding that a U.S. citizen detained as an enemy combatant has the right to challenge their detention through Habeas Corpus in civilian courts. The Court affirmed that citizens are entitled to Fifth Amendment due process, including notice of the basis for detention, an opportunity to contest it before a neutral decisionmaker, and access to counsel, even in national security contexts. This case had a narrow focus, but relied on Milligan heavily. Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866) sets forth reasonable limitations on government power during times of war, insurrection, etc. regarding the Writ of Habeas Corpus.
Suspending the Writ of Habeas Corpus creates an additional dilemma. While doing so does not directly violate the Fourth, Fifth, and Sixth Amendments, indirectly, it certainly does violate these Amendments. Now we need to take a quick look at these Amendments to the United States Constitution within the context of the Writ of Habeas Corpus.
Fourth Amendment
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The Fourth Amendment protects against unreasonable searches and seizures. Suspension of Habeas Corpus would remove a key mechanism for challenging the legality of detentions, potentially allowing the government to detain individuals without judicial review of whether the initial seizure was reasonable or supported by probable cause. For example, if someone is arrested without a valid basis, they might normally use Habeas Corpus to contest the detention as a Fourth Amendment violation. Without Habeas, such violations could go unchecked, but the suspension itself does not directly negate the Fourth Amendment's protections-those rights still exist, though enforcing them becomes harder.
Fifth Amendment
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
The Fifth Amendment ensures due process of law and protects against self-incrimination. Habeas corpus is a critical tool for enforcing due process, allowing individuals to challenge detentions that lack proper legal procedures (e.g., no trial, unfair hearings, or coerced confessions). If habeas is suspended, individuals might be unable to contest detentions that violate due process, effectively undermining the ability to enforce Fifth Amendment rights in practice. However, the suspension of habeas corpus does not itself repeal or violate the Fifth Amendment; it simply limits one avenue for seeking redress.
Sixth Amendment:
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense."
If Habeas Corpus is suspended, individuals detained without charges may be unable to challenge prolonged detention, effectively delaying or preventing a "speedy trial" as guaranteed by the Sixth Amendment. For example, during a suspension, the government could hold someone indefinitely without initiating a criminal prosecution, leaving Sixth Amendment protections dormant.