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.
Copyright © Truthout. May not
be reprinted without permission.
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
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