Friends,
As you might know, I
have been advocating for the release of Plowshares activist Rev. Steve Kelly,
currently incarcerated in the Glynn County Jail in Georgia. I hope that
the jailers in Glynn County start doing what is happening in more enlightened
parts of the country. The Rikers Island nest of positives is forcing the
release of several hundred prisoners there.
However, our friends
at the Nuclear Resister, Felice and Jack Cohen-Joppa, have been in touch with
Steve, and this is their response: “We spoke with Steve at length re: what he
would be willing to let people do on his behalf, and he is adamant that he
doesn’t want anyone to work for his release.” So at this time, I will
desperately hope that Steve survives the pandemic.
Kagiso, Max
DOJ Seeks to Exploit Coronavirus Emergency to Detain People
Indefinitely
Attorney
General William Barr leaves the U.S. Capitol after meeting with members of the
Senate Republican caucus on February 25, 2020, in Washington, D.C.CHIP
SOMODEVILLA / GETTY IMAGES
March 27, 2020
PART OF THE SERIES
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 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.”
Trump’s
Powers During the National Emergency
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.
Norman L. Reimer, executive director of the National Association
of Criminal Defense Lawyers, sounded the alarm. “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,” he said. “I find it absolutely terrifying. Especially in a time of
emergency, we should be very careful about granting new powers to the
government.”
The DOJ also wants to amend the Federal Rules of Criminal
Procedure to allow for hearings conducted by videoconference without the
defendant’s consent.
And the DOJ seeks Congress’s permission to suspend the statute
of limitations for criminal and civil cases during a national emergency.
Fortunately, there appears to be strong opposition in Congress to the DOJ’s proposal. Senate Majority Leader Chuck Schumer
wrote, “Two Words: Hell No”; Sen. Mike Lee (R-Utah) tweeted, “OVER MY DEAD
BODY”; and Rep. Alexandria Ocasio-Cortez tweeted, “Absolutely not.”
People
Suspected of Having Virus Subject to Surveillance and Detention
Meanwhile, Customs and Border Protection (CBP) is planning the
surveillance and detention of people suspected of having COVID-19. The
agency’s internal pandemic response plan obtained by The Nation discusses
quarantining detainees in tent cities at the border and coordinating with
foreign and domestic intelligence agencies and the Pentagon.
“We do not yet know whether CBP will carry out surveillance,
transfer and detention of individuals based actual or perceived health status,”
immigration attorney Helen Sklar, a member of the executive board of the
National Lawyers Guild-Los Angeles chapter, told Truthout. “We do
know, however, that Immigration and Customs Enforcement (ICE) will not release
immigrant detainees notwithstanding the near universal agreement among public
health experts that their continued detention poses a grave danger to public
health, including an elevated risk for chronic and infectious diseases such as
COVID-19.”
Sklar said that ICE does not release detained immigrants for
medical reasons even though it has long had the authority to do so.
Will Trump
Suspend the Election?
The national emergency occasioned by the COVID-19 pandemic has
already led to the postponement of presidential primaries in Ohio, Kentucky,
Georgia, Connecticut and Louisiana. Could Trump use his emergency declaration
to suspend the November presidential election?
Not legally, as the 22nd Amendment to the U.S. Constitution
limits presidents to two terms, and Congress, not the president, has the power
to schedule presidential elections.
The more likely scenario is that Republican governors will erect
roadblocks to discourage people from voting during the pandemic. They could
“tamp down the turnout in the elections if they are not robust in providing
creative and innovative solutions for how people can vote either in person with
social distancing at normal polling stations or by mail,” Rohde told Smith and
Boghosian.
Sen. Ron Wyden (D-Oregon) has proposed a bill that would require
states to develop plans to conduct the election in light of “the very real
threat looming this November.” The Resilient Elections During
Quarantines and Natural Disasters Act of 2020 would require states to furnish postage-free absentee
ballots with self-sealing envelopes and provide grants worth $5 million to
states to pay for postage and high-speed scanners to count ballots.
Even if Trump loses the election, however, there is a danger he
might illegally declare martial law and refuse to leave the White House.
During the 2016 presidential campaign, Trump claimed the
election was being rigged and refused to say he would accept
the results if he lost the election.
Note: This article has been corrected to clarify that the
national emergency declaration does not actively weaken Medicare, Medicaid and
State Children’s Health Insurance.
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 advisory
board of Veterans for Peace. Her most recent book is Drones and Targeted Killing:
Legal, Moral, and Geopolitical Issues.
Donations can be sent to the Baltimore Nonviolence Center,
431 Notre Dame Lane, Apt. 206, Baltimore, MD 21212. Ph: 410-323-1607;
Email: mobuszewski2001 [at] comcast.net. Go to http://baltimorenonviolencecenter.blogspot.com/
"The master class has always declared the wars; the
subject class has always fought the battles. The master class has had all to
gain and nothing to lose, while the subject class has had nothing to gain and
everything to lose--especially their lives." Eugene Victor Debs
No comments:
Post a Comment