Justice Department Wants to Suspend Certain Constitutional Rights During Coronavirus Emergency

The Department of Justice (DOJ) is using the coronavirus pandemic to ask Congress to craft legislation that would allow chief judges to detain people indefinitely without trial and suspend other constitutionally-protected rights during emergencies.

Although the DOJ’s requests are unlikely to make it through a Democratically-led House of Representatives, they are troubling civil liberties advocates and Donald Trump critics who feel the president may use this moment of crisis to push for controversial policy changes. 

The DOJ plans were reported on by Politico’s Betsy Woodruff Swan, who reviewed the request documents.

According to Swan:

The proposal would also grant those top judges broad authority to pause court proceedings during emergencies. It would apply 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 process and proceedings,” according to draft legislative language the department shared with Congress. In making the case for the change, the DOJ document wrote that individual judges can currently pause proceedings during emergencies, but that their proposal would make sure all judges in any particular district could handle emergencies “in a consistent manner.”

The request raised eyebrows because of its potential implications for habeas corpus—the constitutional right to appear before a judge after arrest and seek release.

“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,” National Association of Criminal Defense Lawyers executive director Norman L. Reimer told Swan. “Especially in a time of emergency, we should be very careful about granting new powers to the government.”

The documents also ask for the authority to conduct video conference hearings even without the defendant’s permission, banning people with the coronavirus from applying for asylum, and pausing the statute of limitations during an emergency.

Reimer said the possibility of chief judges suspending all court rules during an emergency without a clear end in sight was deeply disturbing.

“That is something that should not happen in a democracy,” he said.

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