March 21, 2020; Politico
In a move that sent chills through much of the civil rights and justice community, the Department of Justice (DOJ) quietly requested that Congress grant it the ability to ask chief judges to detain people indefinitely without trial during emergencies. This was just one of a host of the department’s requests for extended powers as the coronavirus sweeps through the country.
DOJ’s requests, which can only be granted through congressional action, included actions around the statute of limitations, asylum, and the way court hearings are conducted, as well as the authority to extend deadlines on prosecutions and mergers.
While it is unlikely that this request will go anywhere in the Democratically controlled House of Representatives, it has not received a warm welcome from either side of the isle. But it is not unusual for leaders to use a time of crisis to push for controversial policy changes, and these actions on the part of DOJ would certainly fit that mold. These changes cut across all stages of the legal process from arrest to prosecution. The thought that the federal department charged with protecting and upholding the legal process might work to erode them, makes this request disturbing.
The request would have a broad reach. It would grant the US attorney general the power to ask the chief judge of any district court to pause court proceedings “whenever the district court is fully or partially closed by virtue of any natural disaster, civil disobedience, or other emergency situation.” (The rationale is to gain consistency across the court system, especially in an emergency situation.) And it also requested Congress pause the statute of limitations for both criminal and civil proceedings during national emergencies “and for one year following the end of the national emergency.” It should be noted that President Trump has declared the coronavirus a national emergency.
The right for the accused to appear before a judge after being arrested and to seek release—habeas corpus—is also at risk.
“Not only would it be a violation of that, but it says ‘affecting pre-arrest,’” says Norman L. Reimer, the executive director of the National Association of Criminal Defense Lawyers. “So that means you could be arrested and never brought before a judge until they decide that the emergency or the civil disobedience is over. I find it absolutely terrifying. Especially in a time of emergency, we should be very careful about granting new powers to the government.”
Reimer was especially concerned about suspending these rules during an emergency with no clear end in sight. According to Reimer, “If it were with the consent of the accused person it would be fine. But if it’s not with the consent of the accused person, it’s a terrible road to go down. We have a right to public trials. People have a right to be present in court.”
And, of course, there is more. Parts of this request for more power would ban asylum seekers and immigration by those who have or have had the coronavirus. Of course, this may sound logical, but those working with desperate populations fleeing violence and hunger say this language would block anyone on a presidential travel ban list from seeking asylum in the US.
The good news is that this is unlikely to move forward in this Congress and a bipartisan effort will stand in its way. The bad news is that there are many other emergency powers that can be deployed. Before you breathe a sigh of relief, remember—we may only be seeing the tip of the iceberg.—Carole Levine