Last Monday, the 9th Circuit Court of Appeals issued an interim ruling against the Trump administration’s policy of indefinite detention of certain asylum-seekers pending their deportation hearings. The court ruled that the government failed to make “a persuasive showing that it will suffer irreparable harm if it is required to provide bond hearings pending the outcome of this appeal in the same way it had done for several years.” Getting to the heart of the matter, the court went on to say that the government is not likely to succeed on the merits of its “underlying argument that the government may indefinitely detain the plaintiffs without affording bond hearings at all.” Bottom line: the affected class of asylum seekers will have the opportunity to post bail while an appeal on the merits goes forward.
There is a long history of revulsion for indefinite detention going back at least as far as the English Habeas Corpus Act of 1679 which the noted legal authority Blackstone called the “second magna charta, and stable bulwark of our liberties.” The late Justice Scalia recounted this history in a 2004 dissent, concluding, “The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.”
Habeas corpus is found in our own Constitution - Article I, Section 9, Clause 2. We also have the 8th Amendment which states “excessive bail shall not be required.” All of this applies to noncitizens by virtue of Due Process which, under the 5th Amendment, is afforded to all “persons”, not just citizens.
Abraham Lincoln is reviled by some for suspending the writ of habeas corpus, rounding up 14,000 political prisoners, shutting down 300 newspapers, and throwing editors in jail. Lincoln also ignored the Supreme Court which ruled he did not have the authority under the circumstances to suspend habeas corpus. At least he had the excuse there was a Civil War on.
FDR placed Americans of Japanese descent in internment camps in World War II. On that occasion, the Supreme Court upheld the action in the Korematsu case, which is widely recognized as one of the worst decisions the Court has ever made.
In recent times, the U.S. has used indefinite detention in the War on Terror, notably at Guantanamo. Efforts to amend the NDAA to prohibit indefinite detention of U.S. citizens failed in Congress, but the ACLU and others object strongly to the practice. To sum it all up, we have had some instances of indefinite detention in our history, but it’s still strongly disfavored.
We’ll have to wait and see what the 9th Circuit does on the merits when the indefinite detention question is squarely before the court. The court granted the government’s request to expedite the appeal, so we should have an appellate-level ruling sooner rather than later.