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OpEdNews Op Eds    H3'ed 4/2/20

COVID-19: DOJ Seeks to Exploit Emergency to Detain People Indefinitely

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From Consortium News

Throughout U.S. history, presidents have exploited national emergencies to exceed their constitutional powers. Abraham Lincoln illegally suspended habeas corpus during the Civil War. Franklin D. Roosevelt confined people of Japanese descent in internment camps during World War II. And George W. Bush used his post-9/11 "war on terror" to launch two illegal wars, mount a program of torture, conduct extensive unlawful surveillance and illegally detain people.

In light of the national emergency Donald Trump declared on Friday, March 13, his Department of Justice (DOJ) is asking Congress to allow the attorney general to indefinitely detain people without trial in violation of the constitutional right of habeas corpus. The DOJ also seeks to hold hearings without the defendant's consent and exclude anyone with Covid-19 from eligibility for asylum.

Trump, who delayed responding to the pandemic for an unconscionable period of time, has now declared himself a "wartime president." He knows that wartime presidents are never defeated at the ballot box. Despite Trump's incompetent handling of the crisis, his approval ratings are as high as they have ever been.

But, during Bush's so-called war on terror, Justice Sandra Day O'Connor wrote in Hamdi v. Rumsfeld, "We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the nation's citizens," adding, "Even the war power does not remove constitutional limitations safeguarding essential liberties."

Former U.S. Supreme Court Justice Sandra Day O'Connor in 2016.
Former U.S. Supreme Court Justice Sandra Day O'Connor in 2016.
(Image by (Gage Skidmore, Flickr))
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Trump's Emergency Powers

In declaring the national emergency, Trump invoked the Stafford Disaster Relief and Emergency Assistance Act, which provides for financial and technical assistance to state and local governments.

He also invoked the National Emergencies Act, which triggers more than 100 additional powers for the president, constitutional law scholar Stephen Rohde said on WBAI radio's "Law and Disorder." They include the authority to shut down radio stations, freeze bank accounts and even deploy the military.

Moreover, the Communications Act of 1934 says that when a president proclaims there is a state or threat of war, he can order "the closing of any facility or station for wire communication."

Rohde worries that provision could include television, radio and the internet. "It can give a president a virtual kill switch," he told "Law and Disorder" hosts Michael Steven Smith and Heidi Boghosian. "This panoply of powers that have existed and are now at the president's beck and call are very dangerous."

DOJ Proposes Indefinite Detention

The DOJ is proposing that Congress grant the attorney general power to ask a district court's chief judge to suspend court proceedings "whenever the district court is fully or partially closed by virtue of any natural disaster, civil disobedience, or other emergency situation," documents reviewed by Politico reveal.

That authority extends 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."

This would be a violation of the right to habeas corpus, which allows people to challenge the legality of their detention in court. The U.S. Constitution says only Congress can suspend the writ of habeas corpus. "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it," reads the Suspension Clause.

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Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, deputy secretary general of the International Association of Democratic Lawyers, and a member of the National Advisory Board of Veterans for Peace. Her most recent book is Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues. See  (more...)
 

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