President Donald Trump recently declared the coronavirus outbreak a national health emergency. Now, Congress has received a request from the Department of Justice (DOJ) to grant it new emergency powers – ones that allow the federal government to suspend some constitutionally-protected rights during a state of national emergency, such as the current pandemic.
The document, obtained by Politico, asks for permission to allow chief judges to detain people indefinitely without trial during times of crisis. The request from the DOJ likely won’t happen with a Democratically controlled House of Representatives.
As reported by Rolling Stone:
The DOJ has requested Congress allow any chief judge of a 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.” This would be applicable to “any statutes or rules of procedure otherwise affecting pre-arrest, post-arrest, pre-trial, trial, and post-trial procedures in criminal and juvenile proceedings and all civil processes and proceedings.” They justify this by saying currently judges can pause judicial proceedings in an emergency but that new legislation would allow them to apply it “in a consistent manner.
The request clashes with granting citizens habeas corpus – a constitutional right to appear before a judge after being arrested for seeking release before trial. Enacting the DOJ’s proposed legislation would suspend habeas corpus until the emergency ended, regardless of how long that takes. Meaning, prisoners will be kept locked up for as long as the country is in emergency status.
The executive director of the National Association of Criminal Defense Lawyers, Norman L. Reimer, told Politico the measure terrified him. He said:
Not only would it be a violation of [habeas corpus], but it says ‘affecting pre-arrest.’ 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. That is something that should not happen in a democracy.
Another proposal was to have defendants appear at a hearing via video conference instead of in-person, which would require the amendment of the Federal Rules of Criminal Procedure. Also, the DOJ wants to pass a law so that immigrants who test positive for COVID-19 can’t qualify as asylum seekers.
