The Justice Department is asking Congress for the power to ask chief judges to detain people indefinitely, without trial, in "emergencies."
DoJ isn't advertising the request. Politico obtained some documents that detail the department's request to Congress.
Documents reviewed by POLITICO detail the department’s requests to lawmakers on a host of topics, including the statute of limitations, asylum and the way court hearings are conducted. POLITICO also reviewed and previously reported on documents seeking the authority to extend deadlines on merger reviews and prosecutions.A Justice Department spokesperson declined to comment on the documents.
What about habeas corpus?
“Not only would it be a violation of that, but it says ‘affecting pre-arrest,’” said Norman L. Reimer, the executive director of the National Association of Criminal Defense Lawyers. “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.”
Mind you, these would be permanent changes in the law. They won't suddenly go away when the emergency is over.
Reimer said the possibility of chief judges suspending all court rules during an emergency without a clear end in sight was deeply disturbing.“That is something that should not happen in a democracy,” he said.
I think many of us would agree with that. The ancient "liberty vs. security" argument notwithstanding, emergency powers should be wielded with enormous care and should always -- always -- be temporary. You don't need much of an imagination to see where this could lead.
It's unclear how serious DoJ is about advancing these proposals. The documents may just represent unlikely scenarios that would need to be addressed in a legal way. Perhaps DoJ lawyers don't want to let a crisis go to waste and want to push for these changes while Congress might be open to them.
A privacy organization warns a bill in Congress would violate privacy and security by requiring "every message sent" to be read by government-approved scanning software.
The Electronic Frontier Foundation said the EARN IT bill sponsored by Sens. Lindsey Graham, R-S.C., and Richard Blumenthal, D-Conn., would spell the end of encryption online.
The bill's authors avoided the word "encryption," EFF noted, but they proposed "legislation that enables an all-out assault on encryption."
"It would create a 19-person commission that's completely controlled by the attorney general and law enforcement agencies. And, at the hearing, a vice-president at the National Center for Missing and Exploited Children made it clear what he wants the best practices to be," EFF said.
"NCMEC believes online services should be made to screen their messages for material that NCMEC considers abusive; use screening technology approved by NCMEC and law enforcement; report what they find in the messages to NCMEC; and be held legally responsible for the content of messages sent by others."
The objective appears to be "an Internet where the law required every message sent to be read by government-approved scanning software. Companies that handle such messages wouldn't be allowed to securely encrypt them, or they'd lose legal protections that allow them to operate."
The proposal would provide for a removal of some legal protections, under Section 230 of federal law, for sites that don't follow the "best practices."
That would mean the sites "can be sued into bankruptcy," the report said.
The organization, which advocates for privacy issues and individual control over online data, said the "commission" would be dominated by law enforcement and its allies.
In a sweeping power grab, the Department of Justice has asked Congress for the ability to go directly to chief judges in order to detain people indefinitely without trial during emergencies.
The move is part of a recent push to expand government powers during the coronavirus pandemic, according to Politico, which has reviewed documents that detail the DOJ's requests to lawmakers on this and a host of other topics - including state of limitations, asylum, and how court hearings are conducted.
The move has tapped into a broader fear among civil liberties advocates and Donald Trump’s critics — that the president will use a moment of crisis to push for controversial policy changes. Already, he has cited the pandemic as a reason for heightening border restrictions and restricting asylum claims. He has also pushed for further tax cuts as the economy withers, arguing that it would soften the financial blow to Americans. And even without policy changes, Trump has vast emergency powers that he could legally deploy right now to try and slow the coronavirus outbreak. -Politico
The proposed changes have raised concerns over the implications for habeas corpus - the right to appear before a judge and seek release.
"Not only would it be a violation of that, but it says ‘affecting pre-arrest," said Normal L. Reimer, who heads up the National Association of Criminal Defense Lawyers. "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."
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