The Justice Department is asking Congress for the power to ask chief judges to detain people indefinitely, without trial, in “emergencies.”
DoJ isn’t advertising the request. Politico obtained some documents that detail the department’s request to Congress.
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.
A Justice Department spokesperson declined to comment on the documents.
Trump critics would have a field day with these proposals. It plays into their darkest nightmares about Trump. And frankly, it sounds like most of these proposals wouldn’t pass muster in a Democratic-controlled House.
In one of the documents, the department proposed that Congress grant the attorney general power to ask the chief judge of any 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.”
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.”
What about habeas corpus?
“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.”
Mind you, these would be permanent changes in the law. They won’t suddenly go away when the emergency is over.
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.
I think many of us would agree with that. The ancient “liberty vs. security” argument notwithstanding, emergency powers should be wielded with enormous care and should always — always — be temporary. You don’t need much of an imagination to see where this could lead.
It’s unclear how serious DoJ is about advancing these proposals. The documents may just represent unlikely scenarios that would need to be addressed in a legal way. Perhaps DoJ lawyers don’t want to let a crisis go to waste and want to push for these changes while Congress might be open to them.
Regardless, I’ll stick with Ben Franklin: ” They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”