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Thomas Gallatin / Mar. 24, 2020

DOJ Uses Pandemic to Request Greater Power

Justice Departments asks Congress for authority to temporarily suspend habeas corpus.

The Justice Department “quietly” petitioned Congress last week to grant it greater powers. Specifically, Politico reported that the DOJ “has quietly asked Congress for the ability to ask chief judges to detain people indefinitely without trial during emergencies — part of a push for new powers that comes as the coronavirus spreads through the United States.” In other words, the DOJ wants new power to essentially suspend habeas corpus whenever the DOJ deems it necessary.

Politico further noted that “the proposal — which the agency hopes to have included in the next round of pandemic legislation — would let the DOJ and its sister agency, the FTC, add 15 days onto merger timelines during emergencies, such as disease outbreaks, natural disasters or government shutdowns. … The proposal would also grant those top judges broad authority to pause court proceedings during 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.’”

The DOJ’s proposal is troubling and arguably dangerous, as it seeks to set a precedent that during extraordinary or crisis circumstances the government should enjoy greater power that literally strips Americans of their constitutional rights. Abraham Lincoln was wrong to suspend habeas corpus protections during a literal war. How much worse of an overreach is it during peacetime, even if it is an extraordinary national crisis?

As Scott Bullock, president and general counsel for the Institute for Justice, warns, “History demonstrates again and again that governments use a crisis to expand power and violate vital constitutional principles. And when the supposed emergency is over, the expanded powers often become permanent.”

Echoing Bullock’s warnings, Cato Institute vice president for criminal justice Clark Neily states, “If history is any indication, it’s a near certainty that these powers will be abused and that DOJ will try to hide those abuses when they occur. This is simply not an agency that has earned the kind of trust implied by these requests for increased authority and discretion.”

Ironically, the DOJ still hasn’t fully answered for its abuse of the secretive FISA court system, and now it’s asking to be trusted with even more power. Rep. Justin Amash (I-MI) is correct in responding, “Congress must loudly reply NO.”

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