By Legal Correspondent Saori Shiroseki and Immigration Editor Emma Goldman
with Spy Intern Olivia Gunner in Concord, Mass.
CONCORD, Mass. (April 19) – This morning in Concord, Mass. a bunch of cosplaying nerds celebrated the 250th anniversary of the Battle of Concord and Lexington by dressing up, tootling on fifes, parading through the streets, and topping it off with glazed crullers and iced regulars at Dunkin' Donuts.
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You colonials will never reach Dunkin' Donuts alive! |
We've got nothing against remembering the birth of liberty in America but right now we're too busy grieving its death.
One of the foundations of that liberty is what is referred to as the Great Writ: the write of habeas corpus which allows anyone detained by the Government to challenge that detention in court.
That means everyone. Our framers thought that the writ was so important that they wrote in the Constitution that the American President, their powers carefully enumerated in Article II and constrained there and in every other word of that document, said:
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.
Article I, Section 9, Clause 2.
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Terror in the apple orchards! (Snapshot via AP) |
How's this cornerstone of our liberty and the rule of law doing in Pol Potbelly's reign of terror?
The jury, as they say, is still out.
We start with a brief recapitulation of one of the most notorious outrages: last month, a law-abiding Turkish woman with legal immigration status as a graduate student at Tufts University in Medford was kidnapped on the streets of Somerville by masked agents claiming to be from Immigration and Customs Enforcement (ICE).
The next day, despite a Federal Court order requiring that she be kept in Massachusetts, she was shanghaied to a jail in darkest Louisiana, where she was tortured by ICE-controlled guards who refused to give her her asthma medication. Fortunately, they did not succeed in killing her.
Her sole offense, according to Pol Potbelly’s jackals, was that she once signed an editorial in the Tufts student newspaper opposing Israel’s unrelenting war in Gaza.
Once immured in immigration jail in Louisiana her case was assigned to an immigration “judge.” We use the quotes because despite the name, these people, who have the power to keep noncitizens locked up and eventually deported, aren't judges under Article III. They are in essence hearing officers subject to the tender mercies of their boss, Illegally Blonde Attorney General Pam Bondi, who has already s***canned 20 of them for reasons only known to her.
Feel better?
The Founders thought so little of this system that they listed it as a reason for declaring the independence of the United States:
[King George III] has made Judges dependent on his Will alone, for the Tenure of their Offices, and the Amount and Payment of their Salaries.
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Republicans mistreating detainees? Unprecedented?... |
On Wednesday, that “judge” decided, solely on the basis of an op-ed Ms. Öztürk signed in a student newspaper, that she should be kept locked up.
In the land of the free, these “judges” are supposed to decide whether to keep people detained according to two legal standards: is the person a danger to public safety? and is she a flight risk who might not show up for future hearings?
Obviously, this woman, who has never been charged with a crime, is no threat to the safety of the good citizens of Somerville. Nor is there any reason to think that a law-abiding graduate student, whose continued residence in the country depends on going to class, is going to be a fugitive from justice.
So of course the “judge” sprang her, right:
“The immigration judge denied bond based on her untenable conclusion that Ms. Öztürk was both a flight risk and a danger to the community,” her lawyers wrote....“The immigration judge’s decision was based solely on the [government] memorandum, which points to no conduct of Ms. Öztürk’s except her co-authorship of an op-ed that the [government] memo asserts had ‘found common cause with an organization that was later temporarily banned from campus.’”
But have no fear: the Great Write will ride to her rescue: Yesterday, the Federal District Court in Vermont, refused to dismiss her habeas petition and ordered her returned to Vermont from where the government kidnapped her in violation of an earlier court order.
The Court considered a number of statutes added by bent Republicans and clueless Democrats that strip Federal Courts of power to entertain habeas petitions from noncitizens embroiled in immigration enforcement and concluded that none of them barred a constitutional challenge to Öztürk's arrest and removal to Louisiana.
Cue fife and drum corps.
Not so fast. First there is no guarantee that the Pol Potbelly regime will comply with the District Court's order. It will undoubtedly appeal on an “emergency” basis first to the Second Circuit (which will likely not entertain Illegally Blonde Pam's drivel very long) and then to the Supreme Court which will.... Your guess is as good as ours.
Even more disturbing, even if by some miracle the body-snatchers comply with the Court's orders and send her back to detention in Vermont, she will not be released.
Instead, the Government will continue removal proceedings, including as noted above, the denial of bond already decided by the immigration “judge” from the swamps.
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...Well, maybe not |
This time, the body snatchers will argue that Federal Court in Vermont is powerless to free her, because federal law strips real Federal Courts of authority over the detention of individuals incident to removal proceedings, like her.
Can this be true?
It can. Thanks to the wonderfully bipartisan efforts of the Clinton Administration and Newt Gingrich's bent Republican House, in 1996, the following provision was added:
“The Attorney General’s discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention of any alien or the revocation or denial of bond or parole.” [8 USC] § 1226(e).
So much for habeas review of lawless determinations to keep innocents like Öztürk from being locked up on the basis of college newspaper articles they wrote.
But statutes purporting to prohibit resort to the Great Writ have to pass constitutional muster. The Supreme Court, in reviewing a previous Republican administration to disappear persons into night and fog on the grounds that they were “terrorists,” said the statutory remedy must be effective:
At the outset, the Court acknowledges that the Suspension Clause does not establish an absolute right to seek the writ of habeas corpus. The Supreme Court has held that Congress may modify or eliminate the right to seek the writ if Congress provides “a collateral remedy which is neither inadequate nor ineffective to test the legality of a person’s detention.” ... If such a substitute is crafted by Congress, courts must then determine “whether the statute stripping jurisdiction to issue the writ avoids the Suspension Clause mandate because Congress has provided adequate substitute procedures for habeas corpus.” ... (quoting Boumediene v. Bush, 553 U.S. 723, 771 (2008)).
Ozturk v. Trump, No. 2:25-cv-374 (D. Vt. Apr. 18, 2025) (slip op. at 33-34) .
(Fun fact: over 95% of the people whom Bush and Cheney said were the world's worst terrorists have been released without any apparent harm to anyone.)
When Ms. Öztürk was denied release by that so-called judge in Louisiana on the basis of nothing but a naked assertion by the body-snatchers and her student newspaper submission, do you think she got an effective remedy which protected her constitutional rights, including her First Amendment right to free speech?
Us neither. Which is why the Vermont Court should order not only order her returned to Vermont, but release her because the immigration court was not, at least in her case, an effective alternative to habeas and thus unconstitutional under the Suspension Clause.
What the bent Supreme Court would say is anyone’s guess. All the lower courts can do is try to prop up the rule of law for as long as they can.
In the battle between The Great Writ v. The Great S***, the outcome is very much in doubt.
If the Supreme Court eventually rubber-stamps lawless and fact-free decisions of DOJ employees in the back bayous of Louisiana, the only wispy remainder of our liberty left will be a bunch of cosplayers at the Rude Bridge advancing through the streets of Concord and Lexington until they reach the Mass. Ave. Dunkin' Donuts.
Happy Patriot's Day!