The department’s draft language, as reported by Politico, seeks modification of the Federal Rules of Criminal Procedure to allow greater use of videoconferencing, even at times without the defendant’s agreement. With covid-19’s rapid transmission between individuals, and the danger it poses to certain groups of people, such a move might have some merit. Similarly, the Justice Department’s proposal to extend the statute of limitations in both criminal and civil cases during an emergency “and for one year following the end of the national emergency” has some merit, although an additional year is excessive. The courts too are facing a significant slowdown as staff works remotely and others are getting sick.
But the Justice Department’s request doesn’t stop there. Instead, the department has also included an idea that should be immediately rejected: letting federal court chief judges halt all court proceedings during an emergency. This provision 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.” In its draft language shared with Congress, the Justice Department argues that the new provision would ensure more consistency in the procedures adopted in different courthouses.
What is most chilling about this proposal is what it would do to habeas corpus, the constitutional guarantee that a detained person has the right to appear in court for a determination of whether his or her detention is lawful. The Justice Department language would allow a judge to order someone who had simply been arrested, but not charged or convicted, to be held until the judge determines the emergency is over.
This proposal is chillingly reminiscent of the Bush administration’s overreach in the aftermath of 9/11. In 2001, the Bush administration moved quickly to send Congress legislation to address the economic impact of the terrorist attack as well as to strengthen national security authorities, all of which Congress passed with little dissent. The USA Patriot Act, one of the most far-reaching proposals, was passed into law less than two months after the attack, granting greatly expanded surveillance and deportation powers to federal law enforcement. The Patriot Act both broadened the definition of immigrants who were deportable and eliminated many procedural protections for such individuals. Any immigrant “certified” a threat to national security could be detained indefinitely.
The American Civil Liberties Union and others challenged that provision, arguing that it was unconstitutional to allow the indefinite detention of individuals arrested and not charged with a terrorism offense if they had an immigration status violation — like overstaying a visa — but could not return to their home country. Though the Supreme Court has not ruled definitively on the constitutionality of indefinite detention, in June 2003, the Justice Department’s inspector general affirmed that the arrests and detentions hundreds of immigrants, mostly Arab, Muslim or South Asian men, had been “indiscriminate” and “haphazard” and that the Immigration and Naturalization Service (the predecessor to Immigration and Customs Enforcement) had been regularly detaining individuals not linked to criminal activity or terrorism.
Now, Trump’s Justice Department is seizing on the pandemic as an excuse to push for a major rollback in civil liberties. President Trump has shown an admiration for autocrats around the world from Russia’s Vladimir Putin to Turkey’s Recep Tayyip Erdogan. It is a classic move of such leaders to use a crisis to advance policies they have long supported. Indeed, Trump has already instituted tighter border restrictions because of covid-19 and further limited asylum applications.
Even if Congress does not agree to the new detention policy, Trump is endowed, as president, with other authorities he can use now that must be closely scrutinized. Even a president admired for his leadership during crisis, Franklin D. Roosevelt, ordered people of Japanese ancestry on the West Coast to be put in internment camps. After 9/11, Congress gave the Bush administration almost everything it asked for, resulting in flawed legislation with vast civil liberties violations. We must demand Congress not forget those lessons.