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.”
OVER MY DEAD BODY https://t.co/B8BRbvRDDa
— Mike Lee (@SenMikeLee) March 21, 2020
Will Josh Hawley be the Next Champion for an America First Foreign Policy?
America First May Have its Next Leader to End Wars Abroad
Does America First have a new non-interventionist champion?
Missouri Senator Josh Hawley has been viewed by many as one of the figures who could potentially lead a Trumpist movement after Trump, should Joe Biden end up being installed as president on January 2021.
Hawley has made a name for himself as a champion of Middle America and questioning the neoliberal orthodoxy on immigration and trade. Lately, Hawley has made a pivot towards questioning the interventionist conventional wisdom on foreign policy.
In early October of this year, the Missouri Senator called for the American government to withdraw troops from Afghanistan. Hawley tweeted, “Almost 20 years now in Afghanistan. Long past time to draw this war to an end.”
Hawley’s foreign policy has been a work progress over the past two years. During a 2019 speech Hawley gave at the Center for a New American Security (CNAS), he questioned the nation-building policy prescriptions of previous administrations, demonstrating some degree of skepticism towards non-stop interventionism abroad on the part of the Senator.
That said, it remains to be seen if Hawley’s legislative record will fully match his rhetoric.
Hawley is a staunch China hawk, who fears the rise of China and is a strong voice against China’s expansionist efforts. Hawley’s track record shows that his foreign policy views are rough around the edges. Daniel Larison of The American Conservative is not as optimistic about Hawley judging by his votes on the Yemeni Civil War. Larison cited several of Hawley’s votes that may be cause for concern:
“Sen. Hawley voted against the Senate’s resolution of disapproval that opposed the president’s effort to circumvent Congress with a bogus “emergency” to expedite arms sales to Saudi Arabia and the UAE. More important, he voted with the president and most Senate Republicans against the antiwar Yemen resolution that would have cut off all U.S. support to the Saudi coalition.”
Nevertheless, Hawley’s comments on Afghanistan are a good sign that Hawley is catching on to the fact that Americans are tired of foreign wars. Politicians can change their views and behaviors. Hawley is likely recognizing that the America First movement is exhausted by the endless wars and wants candidates and elected officials who offer withdrawal plans.
— Josh Hawley (@HawleyMO) November 24, 2020
Journalist Glenn Greenwald, a fierce interventionist skeptic, maintained cautious optimism about Hawley. In a tweet, he commented, “All kinds of reasons to be skeptical of the authenticity here, but — purely as a matter of rhetoric — just imagine any national Republican speaking this way about a Dem administration even 10 years ago. The framework of politics is radically shifting.”
All kinds of reasons to be skeptical of the authenticity here, but — purely as a matter of rhetoric — just imagine any national Republican speaking this way about a Dem administration even 10 years ago. The framework of politics is radically shifting:https://t.co/0g3jpVPsDm
— Glenn Greenwald (@ggreenwald) November 24, 2020
The jury is still out on Hawley. Regardless of flaws in his voting record, America First advocates should continue to push him and other America First leaning Republicans in the right direction. We should never forget that politicians are still receptive to political pressure and the grassroots holds the keys to political change.
Young senators like Hawley are the future of American politics and it makes sense for foreign policy restrainers to lobby them and push them in a direction that favors non-interventionism.
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