Lori Falce: Due process, habeas corpus and the burden of American jurisprudence

Navigating the law isn’t easy. There is a reason lawyers go to school for so long, pay so much for their education and in turn charge what they do per hour.

The law is not as easy as “thou shalt not.” It requires deeper understanding of not just what is being allowed or prohibited or required but how and why and in what circumstances.

And this doesn’t go just for the courts that interpret the law and weigh transgressions — although that’s often where people think the law lives and breathes. An understanding of how law works is perhaps even more vital to the process of legislators crafting the law and executives implementing it.

So let’s look at a couple of the concepts that are being tossed around amid our political discourse these days.

Due process, for example.

The term is getting a lot of play amid the court battles over President Donald Trump’s deportations, exile of some people to foreign prisons and rounding up of international college students with legitimate visas. The argument from his opponents is that the administration’s actions deny due process. The reply from supporters is that due process isn’t necessary for noncitizens.

The problem with that is fundamental. Due process is how you know the action is appropriate. It’s so important that it’s a foundation of two constitutional amendments.

The words are born in the Fifth Amendment. “No person shall be … deprived of life, liberty, or property, without due process of the law,” it proclaims. In short, the government cannot just act. It must follow a path that proves it has the authority and allows for a response.

Then there is habeas corpus.

That one has been in the spotlight most recently because of Homeland Security Secretary Kristi Noem’s testimony Tuesday before the Senate Homeland Security Committee. When asked about habeas corpus, Noem confidently gave an aggressively wrong answer.

“Habeas corpus is a constitutional right that the president has to be able to remove people from this country,” Noem said.

No. No, it is not.

Habeas corpus, Latin for “have a body,” is not a right of the government. Strictly speaking, the government does not have rights. It has responsibilities. One of those is habeas corpus, which demands the government show its hand when arresting and detaining an individual. It is what prevents the government from taking someone with no reason and throwing them in a dark hole with no answers and no end.

There are countries that don’t have those requirements or don’t abide by them, such as the Democratic Republic of Congo, Russia and South Sudan. Many of them are on the State Department’s “do not travel” list for good reason.

It all comes down to another concept: the burden of proof.

In American jurisprudence, the government has the power, but it also has the responsibility. What is supposed to make our system work is a bedrock principle that the accused never has to prove their innocence. It is the government that is supposed to do the heavy lifting.

That can’t happen without due process and habeas corpus.