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By Shreya Desai, Staff Writer
In the midst of the Coronavirus pandemic, the Department of Justice (“DOJ”) is seeking new emergency powers that would allow federal chief judges to hold individuals in custody indefinitely without a trial during emergencies. [1] The DOJ’s request includes a proposal asking Congress to allow Attorney General William Barr to ask chief judges to put a stay on district court proceedings when the district court is either partially or fully closed due to “any natural disaster, civil disobedience, or other emergency situation.” [2] This power would apply to civil, juvenile, and criminal proceedings, alike. [3]
The DOJ’s proposal has raised constitutional concerns, specifically regarding habeas corpus. [4] A writ of habeas corpus is a court order directed to law enforcement agencies or officials holding an individual in custody. [5] The writ requires the individual being held to be brought before a judge to decide whether the individual’s detention is lawful or whether they should be released from custody. [6] The suspension of writs of habeas corpus is very rare and has only occurred a handful of times throughout U.S. history with the most recent suspension being in 2007 during the Bush Administration. [7]
Additionally, the DOJ seeks to amend the Federal Rules of Criminal Procedure 5(f) and 10(c), which would allow video conference hearings even without a defendant’s consent. [8] Normal L. Reimer (“Reimer”), Executive Director of the National Association of Criminal Defense Lawyers, spoke out against granting new powers to the government especially during emergencies. [9] He pointed out that if the DOJ’s request for these powers were granted, individuals could be arrested but never brought to court until the end of the emergency. [10] He further stated that without the consent of the individual accused of a crime, moving forward with video conference hearings infringes on the right to public trials. [11] Reimer believes that the implications of the proposed changes pose a threat to democracy and should not be implemented. [12]
Another controversial request by the DOJ comes in the area of immigration, which has already been met with large amounts of scrutiny throughout the Trump Administration. [13] Congress has been asked to amend legislation to explicitly exclude those individuals diagnosed with the Coronavirus from applying for asylum in the United States and to suspend and limit the overall entry of aliens into the country. [14] The same change would also be applicable to people subject to presidential proclamations, which are statements issued by the President outlining certain elements that an alien must meet before being given entry into the country. [15] The Chief Executive Officer (CEO) of the Tahirih Justice Center, Layli Miller-Muro (“Miller-Muro”), believes that such language in our legislation is a “humanitarian tragedy that fails to recognize that vulnerable people from those countries are among the most persecuted,” and that this change would fail to protect them. [16] Miller-Muro elaborated, “Borders can’t protect us. Viruses do not care.” [17]
In response to the spread of the Coronavirus pandemic, the Trump Administration has declared both a public health and a national emergency. However, Congress has yet to comment on how the pandemic will impact its decision to accept or reject the DOJ’s proposed amendments in light of the constitutional concerns raised by many. [18]
[1] https://www.politico.com/news/2020/03/21/doj-coronavirus-emergency-powers-140023
[2] Id.
[3] Id.
[4] Id.
[5] https://www.thoughtco.com/about-the-writ-of-habeas-corpus-3322391
[6] Id.
[7] https://themilsource.com/2020/03/24/what-is-habeas-corpus-why-justice-department-suspend/
[8] https://www.politico.com/news/2020/03/21/doj-coronavirus-emergency-powers-140023
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/presidential-proclamations.html
[16] https://www.politico.com/news/2020/03/21/doj-coronavirus-emergency-powers-140023
[17] Id.
[18] https://themilsource.com/2020/03/24/what-is-habeas-corpus-why-justice-department-suspend/
