Separation of Powers Series – Part 1
What Is Habeas Corpus and Why It Is important for Our Community
By Hooshyar Afsar
Introduction
Recently, the concept of “separation of powers” has become a central topic of discussion. I intend to write a series of articles on the history of this topic in general and its specific history in the United States. Considering the current ongoing mass arrests and deportation of immigrants—including members of our community—without legal due process, I decided to start the series with a focus on habeas corpus.
Habeas corpus is a Latin phrase meaning: “you should have the body.” Its basic meaning is that anyone detained by authorities has the right to be physically brought to a court for an examination of the legality of their arrest and detention. The legal order is referred to as “the writ of habeas corpus,” which summons the jailers or detainers of a person to bring the person to court. If the court determines that the arrest and detention were unlawful, the person should be released.
In this article, we will discuss the history of habeas corpus in the U.S. and internationally, historical suspensions of habeas corpus, the current threat to habeas corpus in the U.S., and its importance to our community.
History of Habeas Corpus
While many people think the first reference of habeas corpus was in the Magna Carta (the royal charter of rights agreed to by the king of England in the thirteenth century), there is evidence of writs being issued in the twelfth century, applying to any person and not just to “freemen.”
In the U.S., habeas corpus was first enshrined in the U.S. Constitution, the highest law of the land, in the late 1700s. References to the legal safeguard are both direct and indirect. The direct reference appears in Article I (which is focused on the roles and responsibilities of the legislative branch, i.e., the U.S. Congress), where in Section 9, Paragraph 2 it states: “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 Bill of Rights, comprised of the first ten amendments to the U.S. Constitution which focus on individual rights, the Fifth Amendment clearly states: “No person shall be … deprived of life, liberty, or property, without due process of law.” Similarly, the Fourth, Sixth, Seventh, and Eighth Amendments further define the rights of the people against arbitrary search and seizures; the right to criminal prosecutions and speedy and public trial; the right to trial by jury and against excessive bails and fines; and the right against cruel and unusual punishments. In addition, the Fourteenth Amendment emphasizes legal due process for “any person” by stating that: “nor shall any State deprive any person of life, liberty, or property, without due process of the law; nor deny to any person within its jurisdiction the equal protection of the laws.” Note the use of the term “any person” rather than just the citizens of the United States.
On an international level, the Universal Declaration of Human Rights, specifically Article 10, is reflective of habeas corpus, stating: “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.” Both the U.S. and Iran were among the 48 nations who voted for the UDHR at the United Nations in December 1948.
Democracy and Habeas Corpus
Democracy cannot exist without safeguarding each person’s fundamental human rights through establishing and protecting their legal rights. A major aspect of those safeguards is a legal due process for bringing charges against and detaining a person. Without such safeguards, a person could be arrested arbitrarily and held without any legal basis. Dictatorial and authoritarian governments do not like to abide by “the legal due process of law” and the “writ of habeas corpus” because it takes away their power to seize people and property based on their political and ideological motives.
Separation of powers are key to a functioning democratic system. Habeas corpus is related to separation of powers because it’s the judiciary’s function, as one of the branches of government, to play a key role in making sure that the executive branch and its enforcement levers do not violate the legal rights of “any person” living in this country. The judiciary is also required to make sure that the legislative branch (both at federal and state levels) does not approve laws that could violate those legal rights.
As discussed above, the U.S. Constitution and its amendments are to a certain extent unique because they clearly state that such fundamental legal rights and the right to legal due process belong to any person in the United States rather than U.S. citizens only. This fact means that habeas corpus and legal due process clearly pertain to “any person” regardless of their immigration status. There are multitudes of reasons for which the founders of this republic deliberately avoided limiting fundamental legal rights to only citizens and that is not the topic of our discussion here. Yet, it is clear that they knew what they were drafting (the absolute majority of them were lawyers) and every section, including the amendments, went through long discussions, multiple drafts, and reviews. This fact basically means that every human being in the United States has those rights including the “Privilege of the Writ of Habeas Corpus.”
Suspension or Disregard of Habeas Corpus in U.S. History
When it comes to the legal protection of habeas corpus in American history, there have been multiple suspensions or attempts at suspensions during the Civil War, the Reconstruction period thereafter, World War II, and in the aftermath of the September 11 attacks. The most pronounced one is the suspension by President Abraham Lincoln at the onslaught of the Civil War in 1861.
In addition to these notable time periods, on numerous other occasions throughout U.S. history, habeas corpus has not been granted to immigrants and even U.S. citizens. The best documented cases apply to Mexican Americans who were subjected to mass arrests and deportation twice in the twentieth century. The first one happened during the late 1920s and 1930s, at the start of the Great Depression, when an estimated one million American citizens of Mexican descent—who had been born in the U.S.—were rounded up and deported to Mexico. [1] Later, in 1954, 1.1 million people of Mexican descent, including many American-born U.S. citizens, were deported to Mexico under a program with the name “Operation Wetback,” a derogatory reference to immigrants who had swum across the Rio Grande river to enter the United States. [2] In these two mass deportation events, well over one million people who were deported were either American citizens or had a legal work permit.
We are now in the midst of yet another period in U.S. history when the legal protection of habeas corpus is being violated en masse. Stephen Miller, White House Deputy Chief of Staff for Policy and U.S. Homeland Security Advisor, announced in May 2025 that the Trump Administration was “actively looking at whether to attempt to suspend the right to habeas corpus.” [3] Moreover, the Secretary of Homeland Security, Kristi Noem, when recently asked during a Senate hearing to define habeas corpus, incorrectly stated that it was the “right that the president has to be able to remove people from this country.” [4]
In this environment, thousands of immigrants, many of them with legal status, have already been rounded up and deported without any due process of law. Among those deported are hundreds of Venezuelan immigrants who have been deported to the notorious CECOT prison in El Salvador. A report by ProPublica showed that only 20 out of 238 Venezuelans deported to CECOT were convicted of crimes, while others were merely in violation of immigration laws. [5] There are other cases in which people who had been here legally have been rounded up and deported without any due process. One case that stands out and has gone all the way to the Supreme Court is that of Mr. Kilmar Abrego Garcia of Maryland, who was in the U.S. legally and was sent to CECOT. The Trump administration admitted that he was sent to El Salvador in error and the Supreme Court ruled that the administration should facilitate his return. There have been numerous demonstrations in his support and several U.S. elected officials have traveled to El Salvador to meet with him and demand his return. Under pressure, the Justice Department finally returned Mr. Abrego Garcia to the U.S. to face charges. Although he is still detained in a federal facility in Tennessee, this was still a victory for safeguarding the “Privilege of Writ of Habeas Corpus” in the U.S. since he will get his day in court.
Importance to our Community
The due process of law, including issuances of writs of habeas corpus, are absolutely critical for safeguarding all persons’ legal and human rights in the United States, including those of the Iranian community. While many members of our community are U.S. citizens, others are Green Card holders, F-1 students, and other legal visa holders, plus many who are asylum seekers. There have been cases of Iranian asylum seekers in San Diego being arrested while they responded to legal requests for completing their documentation. In another case, eleven Iranian Christian converts seeking political asylum on the grounds of religious persecution by the Islamic Republic were deported to Panama by the Trump administration in February 2025. Iranian American Congresswoman Yassamin Ansari has introduced new U.S. legislation inspired by Ms. Artemis Ghasemzadeh, one of the eleven deported Iranians, called “the Artemis Act, [a] bill [which] seeks to prohibit the expedited removal of individuals fleeing countries that the State Department says persecute religious minorities—and ensure they have the chance to claim asylum in a U.S. immigration court.” [6]
I have written many times in the past about the importance of solidarity with all immigrant communities to defend and safeguard our human and legal rights. Now is the time to show that solidarity in action. The urgency of the moment is of unprecedented importance. More than any time in the history of our community in the U.S., we are faced with the possibility of persecution if we do not speak up and act in any peaceful way we deem appropriate. Solidarity is the word of the moment.
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References:
(1) https://www.theguardian.com/us-news/2024/dec/03/trump-mass-deportation-plan-1930s-repatriation-program
(2) https://calendar.eji.org/racial-injustice/jul/15
(3) https://www.msnbc.com/opinion/msnbc-opinion/habeas-corpus-stephen-miller-comments-trump-immigration-rcna206290
4) https://www.nytimes.com/2025/05/20/us/politics/kristi-noem-habeas-corpus-deportations.html
5) https://www.propublica.org/article/trump-el-salvador-deportees-criminal-convictions-cecot-venezuela
(6) https://www.nytimes.com/2025/05/20/world/middleeast/us-bill-iran-panama-asylum.html#:~:text=She%20said%2032%20were%20still,to%20speak%20English%20and%20Spanish.&text=Ms.%20Ghasemzadeh%20said%20that%20if,immigration%20policy%20for%20The%20Times.
