CREATORS: Forget Habeas Corpus at Your Own Peril

Matthew T. Mangino
CREATORS
March 10, 2026

Normally, when someone is confronted with a Latin legal term their eyes glaze over and their brain shuts down. Well, here is a Latin term you need to know — habeas corpus.

The term is a legal concept meaning "that you have the body." Known as "The Great Writ," habeas corpus has been around a long time, dating back to England's Magna Carta in 1215. It is a procedure that allows any person detained on a charge "without sufficient cause" to challenge their detention in court.

The founders included habeas corpus in Article I, Section 9 of the U.S. Constitution, "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."

In the spring of 2025, White House Deputy Chief of Staff Stephen Miller responded to a question from reporters about the Trump administration suspending habeas corpus in regard to immigration law enforcement. "The Constitution is clear and that, of course, is the supreme law of the land, that the privilege of the writ of habeas corpus could be suspended in time of invasion ... (s)o that's an option we're actively looking at."

When the Department of Homeland Security and the Department of Justice adopted a policy that made most detained immigrants who entered the country without permission — including those who had lived in the United States for years and had no criminal history — ineligible for a bond hearing, lawyers responded with habeas corpus. According to Mother Jones, habeas corpus, "once an emergency legal remedy against unlawful imprisonment ... is now an everyday tool."

The authority outlined in Article I is vested in Congress, and that includes Section 9. Suspending habeas corpus is an extraordinary response to an extreme crisis. The writ has been suspended only four times in our nation's history.

Former President Abraham Lincoln suspended habeas corpus in 1861 during the Civil War. According to the Brennan Center, that move was challenged in court and led to a constitutional showdown between the executive and judicial branches. Chief Justice Roger Taney wrote that only Congress had the power to suspend habeas corpus, not the president. It took two years to get Congress to act — but in the meantime, Lincoln never followed Taney's ruling.

The three other instances, according to the Constitution Center, include Congress granting former President Ulysses S. Grant the ability to suspend the writ during an ongoing crisis involving the Ku Klux Klan after the Civil War.

In passing the KKK Act of 1871, lawmakers made it clear that the president had authority to suspend habeas corpus within any state or territory where persons sought to "overthrow, or to put down ... the government of the United States." Grant used that authority; he deployed the 7th U.S. Cavalry to work with U.S. Marshals to detain suspected Ku Klux Klan members.

The United States had annexed the Philippines under the terms of the Treaty of Paris that ended the Spanish-American War. In 1902, Congress passed a law that allowed the writ of habeas corpus to be suspended by the president or governor if needed in the Philippines.

In 1905, the appointed Gov.Luke Edward Wright used the law to suspend the writ of habeas corpus in two provinces. Wright believed the independence forces had caused "a state of insecurity and terrorism among the people, which makes it impossible in the ordinary way to conduct preliminary investigations before justices of the peace and other judicial officers."

Hawaii was a territorial possession of the United States when Pearl Harbor was attacked by Japanese on Dec. 7, 1941. After the attack, the Territorial Governor declared martial law, and suspended habeas corpus. Two days later, former President Franklin Roosevelt approved the suspension of the writ and martial law remained in place until October 1944.

Can the president convince Congress to suspend habeas corpus for illegal immigrants or how about American citizens who smuggle drugs or sell drugs on the streets? Could Congress, at the behest of the president, suspend habeas corpus for people protesting the war in Iran or the release of the Epstein Files?

Forget habeas corpus at your own peril.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, "The Executioner's Toll," 2010, was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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Justices Jackson and Kavanaugh spar over SCOTUS emergency orders

Sharing a stage, Supreme Court Justices Ketanji Brown Jackson and Brett Kavanaugh sparred recently over the many emergency orders the court has issued allowing President Donald Trump to move ahead with key parts of his agenda, reported The Associated Press.

The setting was extraordinary, a federal courtroom filled with legal luminaries, including the federal judge singled out by Trump after blocking part of the president’s immigration crackdown.

Kavanaugh, 61, and Jackson, 55, sat a few feet apart in a courtroom in which they both heard cases when they served on the federal appeals court in Washington. They were separated only by a federal judge who asked questions of them both. The occasion was an annual lecture in memory of a former federal judge and prosecutor, Thomas A. Flannery.

Trump appointed Kavanaugh to the high court in 2018. Jackson moved up from the appeals court in 2022, appointed by President Joe Biden.

The issue in emergency appeals is whether a policy that has been challenged in court should be allowed to take effect while a legal case that could last for years continues.

Jackson, a frequent dissenter from the emergency orders, said Kavanaugh and the other conservatives who repeatedly sided with Trump last year were not serving the court or the country well.

“The administration is making new policy ... and then insisting the new policy take effect immediately, before the challenge is decided. This uptick in the court’s willingness to get involved in cases on the emergency docket is a real unfortunate problem,” Jackson said to loud applause.

The court is “creating a kind of warped” legal process by intervening in an early stage of a case and essentially predicting the outcome before arguments are fully developed, she said.

The Justice Department’s rush to the Supreme Court is not unique to the Trump administration, Kavanaugh said, explaining that as enacting legislation through Congress gets harder, administrations “push the envelope in regulations. Some are lawful, some are not.”

He said some critics of the recent orders had no objection when the justices allowed challenged Biden administration policies to take effect even as court cases were proceeding.

Many of the judges in attendance have been involved in high-profile challenges to administration policies, including U.S. District Judge James Boasberg. His clash with the administration over deportation flights to a notorious prison in El Salvador prompted Trump to call for Boasberg’s impeachment.

Also on hand was U.S. District Judge Royce Lamberth, who ruled two days ago that Kari Lake, Trump’s choice to lead the U.S. Agency for Global Media, did not have legal authority to take the actions she’s done to largely dismantle the Voice of America.

Neither Jackson nor Kavanaugh mentioned judges by name. But Jackson repeated a complaint she and the other liberal justices have made in their dissents.

“Should the Supreme Court be superintending the lower courts when they are hearing and deciding the issues?” she asked.

Kavanaugh, who joined an opinion criticizing lower-court judges for ignoring Supreme Court rulings, said the issues for the justices are often complicated and cases, close.

“None of us enjoys this,” he said.

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Maurer: OLC memo on boats strikes is 'bullshit'

 Dan Maurer of Lawfare describes the difference between a lie and “bullshit” in the context of the military boat strikes which continued yesterday with six more deaths:

The Department of Justice’s Office of Legal Counsel (OLC) has become a flashpoint in the public debate over the Trump administration’s compliance with federal laws, the Constitution, and foundational rule-of-law principles. The Justice Department’s resistance to publishing the OLC opinion on the lawfulness of the military’s counternarcotic boat strikes is one such lingering controversy. But lack of transparency is not always the problem. On Dec. 23, 2025, the OLC provided its opinion on the “Proposed War Department Operation to Support Law Enforcement Efforts in Venezuela” (called “Operation Absolute Resolve”) to the legal adviser for the National Security Council.

This particular OLC memorandum—more specifically, the argument it makes based on an interpretation of law and many now redacted facts—contains “bullshit”: in the technical sense of the term first described by philosopher Harry Frankfurt in his classic book, On Bullshit. Frankfurt’s chief accomplishment is lexicographically and conceptually distinguishing a lie from bullshit, an approach that has been applied since in many disciplines, including ethics, international relations, and rhetoric.

Inspired by other legal scholars’ use of Frankfurt’s “bullshit” concept to address serious controversies, including constitutional interpretation, I aim to apply Frankfurt’s definitional clarity to another legal methodology target: national security-related OLC opinions that rely extensively on previous OLC opinions as support for their key propositions. This matters because those key propositions in turn result in legal conclusions aligned with known policy preferences of the president. As Michael Smith put it: “Bullshit is worth calling out wherever it may be.”

This piece takes up that challenge and finds that “the President’s law firm” is as guilty of purveying bullshit as any other group of legal professionals. This is an especially dangerous practice for a government agency. It often results in a superficial legal argument that supports a presidential policy preference well known to the OLC, that may or may not reflect the “best view” of the law, and provides a veneer of authority masking its objectionable “truthiness.”

In the national security context, the danger of a bullshit OLC argument is elevated for four reasons: (a) The OLC’s influence and authority within the executive branch enables it to claim its own conclusions are quasi-precedential and conclusive unless the OLC, the attorney general, or the president chooses to override them (see this important law review article by Trevor Morrison, a former OLC attorney); (b) the actions analyzed frequently deal with life and death decisions involving the U.S. military; (c) the relevant facts are often classified and kept from public scrutiny; and (d) the decisions these OLC opinions validate often avoid judicial review.

 

Frankfurt defined “bullshit” as a fouler version of “humbug,” which Max Black defined as “short of lying,”  but a “deceptive misrepresentation ... of somebody’s own thoughts, feelings, or attitudes” and “especially by pretentious word or deed.” Frankfurt does not say “bullshit” is better or worse than a lie. In fact, the bullshit statement may actually be true. Rather, Frankfurt distinguishes its purveyors’ goals and methods. A lie is a deliberate statement of a falsehood. The speaker knows the statement to be false or at least thinks he knows. And the liar’s intent is to keep the listener or reader away from the truth of the matter via his deliberately false statement. Delivering an effective lie takes “craftsmanship.” But, unlike a liar, the bullshitter does not care if the statement is false, has no intent to lasso the listener or reader away from the truth, may accidentally be stating the truth, and may not even know if the statement is true or false. The bullshitter has a different objective:

[T]he bullshitter hides ... that the truth-values of his statements are of no central interest to him …. He does not care whether the things he says describe reality correctly. He just picks them out, or makes them up, to suit his purpose.

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DOJ wants to screen prosecutor misconduct complaints before adjudicated by state disciplinary authorities

The US Department of Justice (DOJ)  introduced a proposed rule that would establish a formal procedure for reviewing complaints and allegations of professional misconduct against department attorneys before they are taken up by state disciplinary authorities, reported JuristNews.

The proposal, which comes amid increasing scrutiny of the department’s attorneys and their adherence to ethical obligations in implementing Trump administration policies, seeks to empower Attorney General Pam Bondi to request the suspension of state bar investigations until the Department of Justice conducts a review of any originating complaint. The department said the proposed rule reflects concerns about what it described as the increasing “weaponization” of bar complaints against government lawyers, including complaints filed by political activists against senior DOJ officials and career attorneys.

The department argued that such complaints risk interfering with the attorney general’s statutory responsibility under 28 U.S.C. 519 to supervise DOJ litigation and legal activities.

The proposal would amend 28 CFR Part 77 to allow the Attorney General to review allegations that a current or former DOJ attorney violated ethics rules while performing federal duties. Under the proposal, if a complaint is filed with a state, territorial, or District of Columbia bar disciplinary authority, the DOJ could request that the authority pause investigative steps requiring participation from the attorney until the department completes its review.

Hilary Gerzhoy, chair of the rules of professional conduct review committee for the District of Columbia Bar, said the proposal “is incredibly concerning, adding that it “is inconsistent with all precedents,” and that attorney discipline in Washington, DC, is conducted through an independent process overseen by the District of Columbia Court of Appeals rather than the federal government.

Public comments on the proposed rule will be accepted through April 6, 2026.

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Mangino discusses Ohio school's video game lawsuit on WFMJ-TV21

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Mangino discusses murder of new born on Law and Crime's Scandal

Watch my interview with Sierra  Gillespie host of "Scandal" on Law and Crime Network.

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The 'Iran War' may be remembered as the end of restraint on a president's use of the military

Jack Goldsmith, a Harvard Law professor and former senior Justice Department official in the George W. Bush administration, said President Trump’s unilateral launch of the Iran war may be remembered as the death of any pretense that law and executive branch lawyers can be counted on to meaningfully constrain a president who wants to use military force on his own, reported The New York Times.

“By using the military on such a large and dangerous scale with foreseeable U.S. casualties, this operation kills the idea of any effective legal constraint on the president’s use of force,” he said. “It’s been very close to dead for years, I think.”

In 2007, Senator Joseph R. Biden Jr. argued in a presidential candidate survey that presidents have no legitimate power to bomb another country without congressional authorization, unless the United States is about to be attacked. Senator Barack Obama said the same thing. But executive power can look different from the vantage point of the Oval Office.

Mr. Obama bombed Libya without authorization in 2011. And, running for president again in 2019, Mr. Biden argued that the Constitution empowered presidents to order limited military strikes on their own. In 2024, Mr. Biden ordered several large-scale strikes on Iranian-backed Houthi militants in Yemen who were menacing Israel and shipping in the Red Sea.

Against that backdrop, Mr. Biden’s approach to Iran over time is instructive. In 2007, he had singled out an attack on the country as particularly dangerous and unpredictable, writing, “Let’s not kid ourselves: any military conflict with Iran is likely to become major.”

In 2019, he maintained that “any initiation of the use of force against Iran,” unless in response to an imminent attack, “could certainly result in a wide-scale conflict and constitute a ‘war’ in the constitutional sense that would require authorization by Congress.”

But as president in 2023, before he dropped out of the 2024 race, Mr. Biden sidestepped Iran in responding to a similarly worded survey.

Mr. Trump had already joined Israel last June in bombing Iranian nuclear sites, in what has become known as the 12-day war. Since then, he has unilaterally “determined” that the United States is in a formal armed conflict with drug cartels, and launched a brief invasion of Venezuela to seize its president, Nicolás Maduro.

Now, without going to Congress, Mr. Trump has joined Israel in killing Iran’s supreme leader and other top officials at the start of a massively larger bombing campaign that he said he intended to last “four to five weeks.” He has urged Iranians to rise up for a regime change.

Ahead of the operation, Mr. Trump made scant effort to persuade lawmakers and the public that such a war had become necessary. He delivered no Oval Office address and barely mentioned Iran in his State of the Union speech, a sharp divergence from how past presidents sought to build a case for wars they wanted to launch.

Those past campaigns have drawn accusations of spin and deception, as when the George W. Bush administration’s warnings about Iraqi weapons of mass destruction proved false after the war began. But even propaganda is a backhanded nod to democracy — an implicit acknowledgment that buy-in from Congress and the public matters when it comes to taking the country to war.

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