The habeas corpus petition, an important tool to fight illegal deportations, is under threat of suspension under the Trump administration

By Harshini Rajachander

Habeas Corpus

On May 10, Rümeysa Öztürk, a PhD student from Tufts, successfully managed to gain bail and transfer out of ICE holdings in Louisiana. The legal maneuver that saved her from gulag-like conditions was a timely filing of the habeas corpus petition when she was first held in Vermont for a day after her detention by masked ICE agents near her home.

At an American Community Media briefing on May 9, Prof. Aziz Z. Huq, Frank and Bernice J. Greenberg Professor of Law, University of Chicago, explained what went right for Ozturk.

“Habeas corpus is a right that goes back to at least Stuart England by which an individual is entitled to claim in court that he or she is wrongfully detained. And once the habeas corpus petition has been filed in a local court – in Öztürk’s case that was in Vermont – it is not lawful for ICE or the government to move that person out of the jurisdiction.”

At the briefing, a distinguished panel explored a critical question: Is the United States drifting toward authoritarianism? Together, assessed how democracies weaken from within—and whether our institutions are resilient enough to resist.

Fighting detainment

Basically, the government doesn’t have the power to detain people without an independent arbiter, i.e., a judge, deciding if it’s lawful to do so, said Prof. Huq. The habeas corpus petition has turned out to be an important tool to fight illegal deportations and the complete denigration of due process that is going on under the Trump administration. It is especially useful for students who were detained for no reason other than using their right to exercise free speech and protest the Gaza genocide.

Even though several constitutional law experts and Democratic Senator Klobuchar stress that only Congress has the power to reverse habeas corpus, it was chilling to note that Stephen Miller, White House deputy chief of staff for policy and homeland security adviser, has threatened to suspend habeas corpus.

The right to due process

Meanwhile, the Trump administration is simultaneously bulldozing the right to due process by use of the Alien Enemies Act, a colonial law that dates back to 1798. The right to due process helps any individual, not just citizens, fight against unlawful detention or protect themselves from arbitrary government action. The removal of Kilmar Armando Abrego Garcia to a high-security prison in El Salvador and the Trump administration’s defiance of court orders to facilitate his return have demonstrated the administration’s flagrant disregard for due process, said the experts.

A new ABC News/Washington Post/Ipsos poll reveals that 49% of respondents believe the president is expanding his authority, flouting the rule of law, and steering the nation away from its founding principles.

“Donald Trump just said in an interview,” said Dr. Huq, “that it would just take too long to do all the trials for ‘he poor people.’ Essentially, he does not want to comply with the law in order to do what he wants to do.”

The road to absolute power

The erosion of these fundamental human rights that were until now enshrined and protected by the constitution points to a much bigger problem at hand.

At the center of this concern is a pattern: Trump increasingly asserts that his presidential power is absolute and beyond question. He routinely attacks the judiciary, installs loyalists over qualified experts, and treats critical institutions—including universities and the independent press—as enemies of the state. His administration appears to use the tools of government to reward allies and punish dissent.

According to hundreds of leading scholars of democracy, these are classic indicators of a country on the road away from democratic rule.

Democracy under siege

“If you ask me, democracy in the US is over; we have unambiguously slipped into competitive authoritarianism,” said Prof. Lucan Ahmad Way, Distinguished Professor of Democracy at the University of Toronto. “Competitive authoritarianism involves leaders who are elected and who maintain that power over longer periods of time, for example, Turkey, Hungary, and India. Opposition parties are even allowed to stand and run for elections, but usually the cost of opposition would be too high for them to meaningfully win.”

In fact, he added, most modern autocrats are elected to power—current statistics show that 63% of all dictators were elected to office, while military coups and forceful takeovers have become quite rare. But, “Is America a democracy? No, not anymore,” said Prof. Way.

What is different and alarming about the American case is the rapid pace of change. Political experts expected things to unfold over some years, as in Hungary or Poland; instead, the mass firing of civil servants, the rebuke of court judges, mass deportation of immigrants have all happened at a much more rapid and dramatic pace.

The historical abuse of power

For black and indigenous residents of the United States, however, this is nothing new.

“The United States can be called a proper democracy only after the Civil Rights Act of 1964, when black people got the right to vote,” explained Prof. Browne-Marshall, Professor of Constitutional Law, John Jay College of Criminal Justice (CUNY). “Even after that, African Americans have been the community on which any abuse of power is first tested on. The unspoken understanding was that the practice of constitutional crisis stayed within black and brown communities, but now it is spreading to the general white population as well.”

The Trump administration has overturned hard-won protections by different groups: women, people with disabilities, workers, climate activists, and immigrants.

Moving forward

During the first 100 days of Donald Trump’s return to the presidency, public concern over the direction of the country has risen sharply. Recent polling reflects a growing sense of alarm:

A nonpartisan survey by the Public Religion Research Institute (PRRI) found that 52% of Americans agree with the statement that Trump is “a dangerous dictator.”

Experts note that the only way to fight back is by believing in a better and more just future. “We have the numbers, we only need to speak up and show the people in power that the majority do not agree with Trump and his policies. President Trump’s 45% approval ratings show that even his voters are not happy,” said Prof. Browne Marshall.

“Where the Democrats err is in embracing neoliberalism and wishing to go back to a time that was good for the upper middle class alone. Instead, they need to take a step back and reconnect with their historical working-class base and understand all that was and is wrong with the American system. Only then do we have a good chance of countering the Trump administration,” Prof. Huq summed up.

“After all, autocracies are never irreversible.”

Read: Observations of an Expat: Tyranny of the Majority

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Harshini is an ex-AI engineer who gave up a career in tech to explore the better things in life. Her story recently appeared in the The Smart Set magazine.

Courtesy: India Currents