Justice Dept reassures Americans only judges can suspend their constitutional rights during coronavirus epidemic

The US Department of Justice has reassured Americans freaked out by a request to Congress for powers of indefinite detention without trial by explaining that only judges — not President Donald Trump — would be able to use it.

DOJ spokeswoman Kerri Kupec lamented the “confusion” caused by a Politico report published Saturday revealing that the department had quietly sought unprecedented emergency powers from Congress to suspend normal legal proceedings, effectively allowing it to imprison Americans indefinitely without trial until the coronavirus emergency is over. 

In a statement on Monday, Kupec patiently explained that only judges — rather than the White House — would have these disturbing new powers.

“These provisions are designed to empower the courts to ensure the fair and effective administration of justice,” Kupec said in the statement, posted via Twitter, explaining that the controversial proposal “confers power upon judges. It does not confer new powers upon the executive branch.”

While the clarification that unelected and unaccountable judges are seeking the power to deprive Americans of their constitutional rights “because coronavirus” might not seem particularly reassuring, Kupec insisted that everything was above-board, even necessary “to help federal judges more consistently manage the cases within their districts and to protect the interests of justice during this national emergency.” 

She explained that “individual judges” already have “existing authority” to extend the statute of limitations and other legal deadlines under a public health emergency, pointing out that judges are already enacting these changes and that the requests to Congress were merely an attempt to standardize the system across the country.

“Criminals should not be able to avoid justice because of a public health emergency,” Kupec continued. 

In several jurisdictions, however, they already have. Philadelphia’s police commissioner, the ironically-named Danielle Outlaw, announced last week that her department would no longer be arresting people for drug offenses, retail theft, burglary, vandalism, and prostitution — among other things. Other major cities, including New York and San Francisco, have enacted similar policies during the pandemic. Other jurisdictions have released low-level offenders, citing prison overcrowding and the risk of coronavirus spreading behind bars.

Civil liberties activists called the measures described in the Politico report and defended by Kupec “terrifying.” Pointing out that it didn’t only apply to those charged with a crime, Norman Reimer of the National Association of Criminal Defense Lawyers told the outlet that “you could be arrested and never brought before a judge until they decide that the emergency or the civil disobedience is over.”

That is something that should not happen in a democracy…Especially in a time of emergency, we should be very careful about granting new powers to the government.

Meanwhile, those who might sleep easy believing Trump lacks the ability to indefinitely detain Americans should be aware that his predecessor, Barack Obama, signed into law a provision allowing the executive branch to indefinitely detain American citizens without charge or trial in 2011 as part of that year’s National Defense Authorization Act. Admittedly, it only applies to Americans "thought to be affiliated with Al-Qaeda or associated organizations," but the precedent has been set. Like so many other past emergencies, it was never repealed, meaning Trump can still do it at any time. 

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