It is being widely reported that Attorney General William Barr’s Department of Justice has asked Congress to allow federal judges to indefinitely incarcerate not only suspected “terrorists” without trial, but anybody they do not like. Barr also wants to suspend a whole array of other constitutionally-protected rights as well.
This move is necessary, indeed, imperative, says Barr, Justice and Trump, especially during this current coronavirus pandemic. But! This move may (or must… or will) be deemed “necessary” or at least “useful” during any emergency — as defined by them, of course.
Given the current makeup of the House of Representatives, however, (which controls and prescribes the broad outlines, and jurisdictional boundaries of the federal court system), it is unlikely that the Trump regime will get its way on this one — at least not unless and until Trump voter-suppresses his way into a second term.
Specifically, the DOJ has requested that Congress allow the chief judge of any of the ninety-four federal district courts to halt any court proceedings “whenever the district court is fully or partially closed by virtue of any natural disaster, civil disobedience, or other emergency situation,” according to a draft of the proposed bill obtained by Politico. This proposal 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 processes and proceedings.”
As cover for this request, the DOJ, Barr and Trump correctly argue that judges can currently pause judicial proceedings in an emergency. However, this proposed “new and improved” legislation would allow them to apply this power “in a consistent manner.”
If this proposed bill becomes law, it will abrogate citizens’ habeas corpus rights, principally an arrestee’s right to appear before a judge and ask to be released prior to trial. Theoretically, this suspension of habeas corpus would only last until the emergency ended — again, which time will be determined by the DOJ, not the judge.
More? DOJ has asked Congress to suspend the statute of limitations on any or all criminal investigations and civil proceedings during the emergency and until one year after it has ended.
Norman L. Reimer is executive director of the National Association of Criminal Defense Lawyers. Reimer described this measure as “terrifying,” saying,
“Not only would it be a violation of [habeas corpus], but it says ‘affecting pre-arrest.’ This means you might never be 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,” he added.
Likewise, DOJ would like Congress to amend the Federal Rules of Criminal Procedure in order that defendants appear at hearings via video-conference rather than in-person — but only with the defendant’s consent.
As for immigrants, the DOJ wants those immigrants who test positive for COVID-19 to be summarily disqualified for asylum within the US.
At this writing, and despite a virtual lock-down of the entire country, coronavirus is still spreading exponentially, infecting and killing people virtually unchecked around the globe. (Although hard hit China, South Korea, and as of just today, March 23, Italy, are reporting signs of COVID-19 slowing in both its infection and death rates).
Demands to release prisoners and “detained” immigrants are rising, if only for the very sensible, very reasonable reason that jails, prisons, and privately owned and operated so-called “immigrant detainment centers” are basically giant petrie dishes wherein this virus can thrive, and then “escape” the brick and mortar walls (not to mention the steel and iron bars) by hiding inside the bodies of civilian employees, visitors, and/or releasees — and then virulently feasting upon the unsuspecting general populace.
These places are often little more than 21st century dungeons. They are notorious for insect- and vermin-infested, unsanitary, horrid conditions, and, of course, their limited or non-existent supplies of soap, sanitizer, and protective equipment. Thankfully, though, some states have already begun to release particularly susceptible inmates and those who are close to their scheduled release date anyway.
But via this new Trump regime initiative, more not fewer, people will enter and remain imprisoned and for an indeterminate amount of time. This is a good indication that Trump and company’s real priority during this crisis is not saving lives but grabbing and holding onto more and more power.
As for Trump himself, it is doubtful that he is really even aware of these nefarious machinations and goings-on by his apparatchiks, subalterns and sycophants. For as ultra-right wing Republican strategist and long-time dirty-trickster Grover Norquist once put it, all they really need in order to actualize their reactionary agenda is one warm body that contains the following single other attribute: