Fellow Americans, our civil liberties are under assault by the Department of Justice. On Saturday, the 21st of March, news broke that the department asked congress to grant them dramatically expanded power to interdict judicial proceedings. According to Reason, these abilities cover “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.” They are to be invoked “whenever the district court is fully or partially closed by virtue of natural disaster, civil disobedience or other emergency situation.” Note, that these measures are not light and quickly passing inconveniences but will stay active “one year following the end of the national emergency.” What this amounts to is the ability to suspend trials and the other judicial processes that give integrity to our system. It further shows a wanton disregard for the 6th Amendment right to a speedy trial which goes as follows:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
The constitution guarantees the right of Habeas Corpus defined as “a writ against his or her unlawful detention by a governmental or judicial system to citizens of the United States.” This legal tool ensures that the accused can go before a judge to be tried in a free and fair trial and that he cannot be held indefinitely without that trial. What the DOJ’s proposal dictates is that trials and other proceedings can be canceled at their will. Without the ability to have a trial, Habeas Corpus is in doubt.
Legal scholars and professionals are incensed by the department’s plans. Take Scott Bullock, president of the law firm Institute for Justice:
“The DOJ proposal is deeply troubling and would raise a whole host of constitutional concerns … 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.”
From the CATO Institute, Clark Neily who is their vice president for criminal justice comments:
“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.”
From the National Association of Criminal Defense Lawyers, executive director Norman Reimer had this to say about the topic:
“Not only would it be a violation of [habeas corpus], but it says ‘affecting pre-arrest.’ 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. I find it absolutely terrifying. Especially in a time of emergency, we should be very careful about granting new powers to the government.”
In the same article, he also said that: “That is something that should not happen in a democracy”.
History sadly shows that the Department of Justice has a troubled record of upholding civil liberties. As historian GJ Meyer lays out in his book The World Remade: America in WWI, the DOJ in concert with other federal agencies carried out a what amounted to a reign of terror on the American populace. The DOJ was tasked with carrying out the Espionage Act which was a baneful piece of legislation which threatened punishments of “not more than $10,000 or imprisonment for not more than twenty years or both” for speaking out against the war effort or saying anything the Wilson administration disapproved of (page 275). The same author called the act a “universal sword of Damocles” which though it charged a shade less than a thousand, it prodded the land of the free into submission (page 283). This paled in comparison to the creation of the American Protective League months later. The APL was an arm of the DOJ which consisted of a quarter million volunteers who would spy on their neighbors to root out supposed German treachery and report it to the Attorney General. Meyer writes that the APL “also became an enormous vigilante force, taking part in raids on homes and offices and enjoying implicit immunity when engaged in breaking and entering of their own initiative” (page 288). The Espionage Act remains on the books and is now used to prosecute whistleblowers like Edward Snowden. Does this sound like an agency deserving of the name “Justice Department”? Perhaps the moniker “Injustice Department” would be better. This proposal advanced by the DOJ is horribly dangerous to civil liberties and gives the agency a power that their history shows they can’t be trusted with.
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