As an attorney, this is one of the most disturbing headlines I have seen in quite some time. This is not supposed to happen in the United States. Not only is it not supposed to happen, but law enforcement isn’t supposed to even want it to happen. But the top prosecutors at this DOJ, including THE top prosecutor, the Attorney General Bill Barr, want this power. Politico flushed out the story:

The Justice Department 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.

I am a lawyer with 20 years of experience, perhaps it takes that kind of experience to absorb the danger here, perhaps it’s obvious to everyone.

This happens in dictatorships. It is always an emergency. It is always temporary, and then it always drifts into something “normal. Having moved aside the constitution once, it’s easier to ignore in another area with difficulties, and from there it’s just much easier with everything.

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.

It is always in an emergency, always seems justifiable or somewhat needed, always sort of allowed by citizens – even with reservations – because there are more important things to worry about. And it’s temporary, right?

No, not always. Every dictatorship that ever grabbed civil rights started with “just temporary, until XYZ.” XYZ never comes.

“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.”

Now I know for sure. Everyone can appreciate the danger.

But I want to relate one thing that you may not immediately appreciate. It is almost just as scary that the DOJ would even want to do this, and want to do it so badly they go to congress to ask.

The DOJ should be working with judges to figure out a way to ensure everyone still appears before a judge, they should be trying to figure out how they can help get it done.

Not asking to get around it.

On my very first day at a very elite law school, in my very first class, one taught by a legendary professor, in the FIRST minute or two of school, the professor said something that forever changed how I looked at the world. It’s one of the few things that have stuck with me all these years. Paraphrasing, he said:

Our constitution was written by people by people who the British government had charged with crimes. Please remember, when we talk about the criminal justice system under our constitution, we are not talking about what we want for “the criminals.” No, we are talking about the system we want for ourselves. Because we all break the law at times, even if only jay-walking. When thinking about criminal law, you are not thinking about what you want for”them.” No, think about what you want for you.

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Peace, y’all

Jason

[email protected], and on Twitter @MiciakZoom