'Do You Agree That This Is A Foundational Principal?': Maggie Hassan Grills DHS Legal Nom On Habeas Corpus

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During a Senate Homeland Security Committee hearing, Sen. Maggie Hassan (D-NH) questioned James Percival, nominee to be General Counsel for DHS, about Habeas Corpus, and other nominees about their approaches.

Transcript

00:01Senator Hassan.

00:02Thank you, Mr. Chair and Ranking Member Peters.

00:05Good morning to all of the nominees.

00:07Congratulations to you all for your nominations,

00:09and congratulations to your families, too,

00:11because this is a family effort, I know,

00:14and we are all grateful for your interest in serving.

00:17I'm going to start with a question for all of you,

00:20and I'd really ask you to restrict your answer to a simple sentence.

00:25If you are directed by the president to take an action that would violate the law,

00:29would you follow the president's directive or follow the law?

00:32Mr. Cairncross.

00:33Senator, thank you for the question.

00:35I don't believe that that would ever happen,

00:37but to take your question, I would be faithful to the law.

00:40Thank you. Mr. Law.

00:42Thank you for the question, Senator.

00:44I'm confident that President Trump would not ask me to violate the law,

00:47and if confirmed, I will uphold the law.

00:49Thank you. Mr. Percival.

00:51Senator, the last two answers were perfect. I'd give the same answer.

00:54Okay, thank you. Mr. Rhodes.

00:56Senator, I agree with my colleagues.

00:59Senator, I agree with what's already been said.

01:01Well, I appreciate all of you saying you will follow the law.

01:05I will just note for the record that I think it is unrealistic to rule out the possibility

01:13that this president of the United States would give a directive that violates the law.

01:17Now, Mr. Percival.

01:19Last month, the White House Deputy Chief of Staff said that President Trump's administration

01:25is actively looking at suspending habeas corpus.

01:28Two weeks ago, I asked Secretary Noem about this, and today I'd like to ask you about this as well,

01:33since you're obviously nominated to be the General Counsel of the Department of Homeland Security.

01:37So, Mr. Percival, let's just start with what is habeas corpus?

01:41Thank you, Senator. Habeas corpus is a Latin phrase that means you shall have the body.

01:46Right. And what is the foundational right that habeas corpus represents in our constitutional democracy?

01:53Yeah, well, I guess there's a number of different concepts.

01:56There's the writ of habeas corpus, which is a judicial review mechanism.

02:00There's what we call the suspension clause, which is about suspending the writ of habeas corpus.

02:04And then there are several implications of that for the work that DHS is doing, such as the Alien Enemies Act.

02:08Well, so, you know, I appreciate you and I could do a law school debate about this.

02:14Let's just get to the core foundational principle here and why it's so important.

02:18It is the bedrock principle in our country that prevents the government from imprisoning someone without any justification or review.

02:26And it's a key right that makes America a free society, unlike North Korea or Iran.

02:33And it's important that we all as Americans understand, appreciate and defend this principle.

02:38And one of the concerns I have, you just gave me an answer that circled around that essential piece of our constitutional democracy.

02:48Every American and every person in this country has a right, if they are detained,

02:55to demand that the government just come and say why they're detaining them and do it in public

03:00and give people that foundational entry to due process.

03:05And since many of us have concerns about this administration's commitment to due process,

03:10I think it's really important that we understand that foundational right.

03:14So do you agree that this is a foundational principle, that the government must bring a person before a court

03:19and provide a reason for that person's detention?

03:22Do you agree that it's critical that we have this right in order to be a free society?

03:26I agree that the Constitution protects the availability of that writ except in enumerated circumstances in the Constitution.

03:33Do you think it's an important thing for a free society?

03:37Do you believe we should be a free society?

03:39Yes. I believe strongly in the ideals of the founders and they included that in the Constitution.

03:43You're also going to take an oath to the Constitution of the United States, right?

03:46Yes. If confirmed, yes ma'am.

03:48If a court says that the Department of Homeland Security must bring a person in the government's custody before a court,

03:55will you advise Secretary Noem to follow that order?

03:59Thank you, Senator. The policy of this administration is to follow court orders,

04:03and if confirmed, I would act consistent with that policy.

04:06Thank you. Mr. Cairncross, I just want to follow up on the line of questioning that Ranking Member Peters started.

04:15He asked you about the reauthorization of the Cybersecurity Information Sharing Act of 2015.

04:21I would also love to work with you and the administration on making sure we get that reauthorized.

04:27Another law that we also talked about when we met that expires on the exact same day is the state and local cybersecurity grant program.

04:35And we've talked about the importance of making sure that the federal government and the private sector,

04:40which controls so much critical infrastructure, works together on cybersecurity.

04:45But the other piece of that puzzle is to make sure that state and local governments have the tools they need

04:51to work effectively with the federal government and the private sector.

04:54So would you commit to working with us to reauthorize the state and local cybersecurity grant program as well?

05:00Senator, I think there's no more important area, or it is extremely important,

05:08the relationship between the state and federal government on this attack.

05:13None of you are free of those attacks in your states, as you know.

05:19And yes, I look forward to working with you on that issue.

05:23It's not just that we're vulnerable to attack.

05:25It's that most state and local governments simply do not have the budget or the tools

05:29and sometimes can't hire the experts, given the shortage of experts in this field around the country,

05:35to effectively guard against these attacks.

05:38So it's really important that these grants help them do that.

05:40Thank you, Mr. Chair.

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