memorial Day 2025

 

Sing it Joan...

 

May 4 1970

Four dead in Ohio. 

I don't usually post to Howard Stern but he really does have some good interviews. Watch this one.

In my high school the fire alarms were pulled and we all walked out.

Want to hear the whole song? 

Hats off to M. Moore.

From Roger Fitch and our friends down under at Justinian.

Invasion" of the United States

Sunday, May 4, 2025

Justinian in Habeas, Immigration detention, Roger Fitch Esq, US Supreme Court, US politics

 Trump deportations ... Detention in gulags ... How much of an enemy does an alien have to be? ... Trump judge turns the tables ... Bush's war on terror shows the way ... Forum shopping for habeas cases ... Roger Fitch files from Washington 

 Everything Trump does seems unlawful, but there are still principles by which he lives:

 

First, never tell the truth when a lie will serve (the Washington Post recorded 30,000+ lies last term).

Secondly, never do legally, what can be done illegally: if successful, opportunities are broadened for illicit behaviour in future, i.e, for further crime, penal or venal.

Take Trump's approach to unwanted immigrants. There are numerous legitimate avenues for regulating immigration and removing undocumented people, without breaking the law. 

Even so, Trump enjoys breaking things, and nothing's bigger than habeas corpus; it's the gold standard for lawbreaking. Chief Justice Rehnquist wrote a whole book (All the Laws but One) about habeas and Lincoln's transgressions of it (Ex parte Milligan). 

In Boumediene v Bush (2008), the supreme court re-affirmed habeas, even for Guantanameros. 

In fact, under the US constitution, habeas can only be suspended when, "in cases of rebellion or invasion the public safety may require it".

The Alien Enemy Act (1798) speaks of a "declared war", or "any invasion or predatory incursion". With  no declared war, Trump conjured a shadow invasion as pretext for invoking the AEA, now relevantly codified at Title 50, sections 21 (restraint, regulation and removal), 22 (time to settle affairs and depart), and 23 (jurisdiction of courts). 

§ 21: "…[A]ll natives, citizens…of the hostile nation or government, being of the age of fourteen years and upward ... within the United States and not actually naturalized", may be "apprehended, restrained, secured, and removed as alien enemies ..."

§ 22: "…When an alien who becomes liable as an enemy ... is not chargeable with actual hostility, or other crime against the public safety, he shall be allowed, for the recovery, disposal, and removal of his goods and effects, and for his departure, the full time which is or shall be stipulated by any treaty ... between the United States and the hostile nation or government of which he is a native citizen" etc, and "where no such treaty exists  ... the President may ascertain and declare such reasonable time as may be consistent with the public safety, and according to the dictates of humanity and national hospitality."

§ 23: "…[T]he several courts of the United States, having criminal jurisdiction, and the several justices and judges of the courts of the United States, are authorized and it shall be their duty, upon complaint against any alien enemy resident and at large within such jurisdiction or district, to the danger of the public peace or safety, and contrary to the tenor or intent of such proclamation, or other regulations which the President may have established, to cause such alien to be duly apprehended and conveyed before such court, judge, or justice; and after a full examination and hearing on such complaint, and sufficient cause appearing, to order such alien to be removed… give sureties [or] be otherwise restrained ... and to imprison, or otherwise secure such alien, until the order which may be so made shall be performed." (emphases added)

In his EO, comically-titled "Invocation of the Alien Enemies Act Regarding the Invasion of the United States by Tren de Aragua, Trump's proclamation dishonestly cherry-picked the AEA, citing §21 on  "invasion" while ignoring §23 judicial hearings. He also attempted to exclude §22's benefits, by finding:

"[S]uch members of TdA are, by virtue of their membership in that organization, chargeable with actual hostility against the United States and are therefore ineligible for the benefits of 50 U.S.C. 22. I further find and declare that all such members of TdA are a danger to the public peace or safety of the United States."

AEA does not purport to suspend habeas, and it allows time for those not fighting or committing crimes to be removed humanely; yet, as DC appeals judge Patricia Millett observed, "Nazis got better treatment" than Trump's "alien enemies". 

The president hoped to deny immigrants the opportunity to consult lawyers or seek habeas, but this has been derailed by the supreme court ruling that habeas must be available, irrespective of whether AEA applies. 

That problematic ruling defeated Trump's sinister purpose in invoking AEA, but he carried on, effectively daring the court to do something about it. 

The court did just that. In an overnight order issued in a related case, seven of the justices reiterated the court's position that habeas must be available, thus staying all attempted deportations under the AEA. More here, and untangling the Deportation Cases, here. 

Read the entire Fitch here.