DOJ Wants Emergency Indefinite Detention Powers to Hold Americans Without Due Process

The Justice Department has sneakily requested Congress to grant it the ability to ask chief judges to detain people indefinitely without trial during emergencies like the China virus pandemic. Politico reports that this is part of a push for new government powers as the novel China virus spreads across the country.

The move has concerned many civil liberties advocates and Donald Trump’s critics are now alleging that the president is exploiting the crisis to move forward controversial measures.

The DOJ requests are not expected to go through the Democratic-controlled House. They cover numerous stages of the legal process, “from initial arrest to how cases are processed and investigated.”

In one of the documents, the department recommended that Congress grant the attorney general the authority to ask the chief judge of any district court to halt 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 give high-ranking judges broad powers to discontinue court proceeding in times of 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,” based on the initial legislative language the department shared with Congress. The DOJ contended that individual judges can already halt proceedings during emergencies but that their proposal would guarantee that all judges in a given district could take on emergencies “in a consistent manner.”

The request caused unease due to its potential implications for habeas corpus, the constitutional right to appear before a judge after being arrested and then attempt to ask for release.

“Not only would it be a violation of that, but it says ‘affecting pre-arrest,’” commented Norman L. Reimer, 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.”

Reimer said the possibility of chief judges nullifying all court rules during an emergency for an indefinite period of time was deeply concerning.

“That is something that should not happen in a democracy,” he remarked.

The department also requested that Congress pause the statute of limitations for criminal investigations and civil proceedings in times of national emergencies, “and for one year following the end of the national emergency,” according to the legislation’s draft.

Politico highlighted another controversial aspect of this 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.:

“Video teleconferencing may be used to conduct an appearance under this rule,” a draft of potential new language for Federal Rule of Criminal Procedure 5(f) explaining, deleting the phrase “if the defendant consents.”

Reimer believes that forcing people to go through hearings over video rather than in person would constitute a threat to civil liberties.

“If it were with the consent of the accused person it would be fine,” he state. “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.”

Utah Senator Mike Lee complained about this proposal on Twitter.

He Tweeted, “OVER MY DEAD BODY.”


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