There were plenty of conspiracy theorists before, and being cooped up on their own hasn’t made them any less paranoid. But that doesn’t make them wrong, and the Department of Justice isn’t helping the situation.
The Justice Department has quietly asked Congress for the ability to ask chief judges to detain people indefinitely without trial during emergencies — part of a push for new powers that comes as the coronavirus spreads through the United States.
Documents reviewed by POLITICO detail the department’s requests to lawmakers on a host of topics, including the statute of limitations, asylum and the way court hearings are conducted. POLITICO also reviewed and previously reported on documents seeking the authority to extend deadlines on merger reviews and prosecutions.
The writer, Betsy Woodruff, is one of the good ones, someone who reports honestly. This matters here since the “documents” referred to are unknown and unseen, except through Betsy’s eyes. While there’s little doubt (based on my experience with Betsy anyway. YMMV) that if she wrote those words, she believes them to be accurate, the question remains whether the docs say what she understands them to say, or whether they are discrete interim measures or something more nefarious.
The move has tapped into a broader fear among civil liberties advocates and Donald Trump’s critics — that the president will use a moment of crisis to push for controversial policy changes. Already, he has cited the pandemic as a reason for heightening border restrictions and restricting asylum claims. He has also pushed for further tax cuts as the economy withers, arguing that it would soften the financial blow to Americans. And even without policy changes, Trump has vast emergency powers that he could legally deploy right now to try and slow the coronavirus outbreak.
For the most part, many of these measures have some justification under the circumstances. Of course, if you believe there is no pandemic and/or this is a government conspiracy to seize power, then none of the reasons are going to persuade you otherwise. The list of concerns is long, changeable and about as idiosyncratic as the style of a tin foil hat, some of which really suit you.
Outside of those who believe with all their heart that this is all some government conspiracy, the appreciation of extraordinary measures is understandable, though each is individually debatable, as is the extent and manner of implementation. But secret documents, rather than an open call for particular action, is exactly the sort of thing that feeds the paranoia. The question it raises is whether the paranoia may be justified.
After 9/11, Congress passed the USA PATRIOT Act, which contained a wishlist of extensions of government powers that had long been there but never thought remotely acceptable. Suddenly, mixed with the fear of the moment, and without bothering to read what they were approving, it became law.
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.”
With calls to shut down courts, along with opening jail doors, there is some sense to making the time frames within which the law requires things to happen more malleable. After all, crime continues despite the pandemic*, so something has to be done with the people arrested. But does that mean courts can’t close? But if arraignments aren’t being conducted, then the people arrested, presumptively innocent, will sit in jail until . . . whenever.
Then there are people in the system, sitting in jail awaiting trial, who will continue to sit and wait. And wait. And there will be a hundred variations on these themes of people whose rights rely on a working court system, and a court system that isn’t working.
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.
“Not only would it be a violation of that, but it says ‘affecting pre-arrest,’” said 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.”
On top of all the other concerns is the sense that authority, once granted in an emergency, will become the new normal after the crisis has ended.
Even something as putatively understandable as conducting hearings over video raises problematic constitutional issues.
Another controversial request: The department is looking to change the Federal Rules of Criminal Procedure in some cases to expand the use of videoconference hearings, and to let some of those hearings happen without defendants’ consent, according to the draft legislative text.
Reimer said forcing people to have hearings over video rather than in person would threaten civil liberties.
“If it were with the consent of the accused person it would be fine,” he said. “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.”
Norm is, of course, absolutely correct about the constitutional right to public trials, and yet the call for video hearings has largely come from public defenders, who aren’t paid enough to die for the defense.
Can we trust the government to implement emergency measures and then, once the emergency has passed, make them go away? Can we trust judges during the emergency to implement these crisis powers in as limited and appropriate a way as possible. Can we trust anybody anymore? The problem isn’t caused by people who are paranoid, but by people who have demonstrated that they can’t be trusted and have squandered public trust in the institutions of government.
In times of crisis, trust may be all we have. From the president to the media and certainly to the Department of Justice, trust burned in better times comes back to haunt all of us now. It’s not that some of these measures aren’t understandable, but that once we let the government limit our rights, they will never willingly stop.
*The mayor of Baltimore has urged residents to stop shooting people because they need the hospital beds for COVID-19 patients rather than the people they shoot.