Trump’s Department of “Justice” Proposes New Repressive Measures

April 6, 2020 | revcom.us

On March 13, Donald Trump declared that the “COVID-19 outbreak in the United States constitutes a national emergency.”  In the context of this very real emergency facing this country and the world, the Department of “Justice” (DOJ)—headed by Trump’s Christian fascist Attorney General William Barr—revealed to a reporter from the website Politico a series of documents relating to possible new leaps in repressive measures in the federal court system.

The core of the DOJ proposals enables federal judges to “pause” court proceedings involving “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.” 

There is also a proposal for holding court hearings by teleconference, and other measures “during an emergency and for one year following the end of the national emergency.” Another directive would empower the chief judge of any federal district court to suspend legal proceedings “whenever the district court is fully or partially closed by virtue of any natural disaster, civil disobedience, or other emergency situation.” [emphasis added] The reasons given for the suspension of these rights are arbitrary and ominous.

These proposals have been met with alarm by various defense lawyers and civil rights attorneys, raising concern that such measures could seriously erode defendants’ rights to a speedy trial. In short, what is involved here is a plan that could be used to imprison people indefinitely, without any legal recourse. These moves raise real concerns that this could result in a de facto suspension of habeas corpus—an important legal principle that has been in effect for hundreds of years and is the basis for rights held in the U.S. Constitution. These rights require that an arrested person be brought before a judge or court in a timely manner. According to the U.S. Constitution, only Congress can suspend habeas corpus.  Attorney General Barr is not challenging habeas corpus directly, but the measures the DOJ is proposing do amount to an end-run around these rights. 

In a situation like this COVID-19 pandemic, it has been necessary to temporarily postpone and suspend most court proceedings in order to carry out social distancing. But there is the real danger that this can give license to such measures being more permanently enshrined in law, threatening the basic principle that denies the government the authority to arbitrarily incarcerate people and deprive them of their rights. 

In short, this is a plan that could allow the government to imprison people indefinitely, without any legal recourse.

The shocks of the crisis triggered by the coronavirus are just beginning to be felt across U.S. society. But already, millions of people have lost their jobs. Tens of millions are looking at the possibility of eviction. The virus is spreading to overcrowded prisons, jails, and detention centers. Thousands are dying, more and more hospital and medical staff are ill with the virus, and hospitals in New York and other cities are already incapable of keeping up with the medical emergency. The U.S.-Mexico border teems with overcrowded detention centers on one side and refugee camps on the other. Protests have begun to ripple—in defense of incarcerated immigrants, demanding protection for people still working in fast food and other businesses, by health care workers against the lack of protective equipment, and against the fascist Trump/Pence regime.

There is a history of the U.S. government seizing on crises to impose repressive and fascist measures, such as the Patriot Act which was quickly enacted in the wake of the 9/11 attacks and which authorized spying against and detention of Muslims and Arab Americans and other highly repressive measures.

In the weeks and months ahead, as the societal crisis deepens with the real possibility of social unrest developing, these proposed measures could set up a legal framework where, at the whim of the federal courts, authorities in federal jurisdictions, such as Washington, DC, could arrest and hold without due process anyone and everyone they came across during a protest, or after a curfew. It would allow people who are not convicted of anything to be held indefinitely in federal jails.

The DOJ proposals would have to pass Congress to become official. It is important to note that while objections have been raised by a handful of Congress people there has been no clear denunciation of this by the top Democratic Party leadership. And if they are passed by Congress as an emergency measure they can easily be upheld in courts across the land. Trump has appointed a record number of federal judges, selected on the basis of being in tune with his fascist program, and most of them would not question this enhancement of this fascist regime’s power.

The Future Is Unwritten

While the U.S. Constitution provides certain rights, these rights have always been confined within the bounds of the underlying property relations of this system—in short, the dominance of the capitalists. So the enslavement of Black people, and the outright armed theft of the lands and wholesale murder of the native American Indian peoples were at one time legal. Further, as Bob Avakian has pointed out, “Even fundamental Constitutional rights can be—and especially in times of ‘stress’ or actual crisis in the system often are—sacrificed to the needs of the ruling class.” [from Birds Cannot Give Birth to Crocodiles, But Humanity Can Soar Beyond the Horizon. 2010] And the law has also been interpreted according to how the capitalist-imperialists see their interests at different times.

Now this country, and the world, have entered a period of great turbulence. A fascist regime rules the U.S., but has been unable to effect a full consolidation of its powers. With Barr as attorney general, Trump has found the aggressive, unapologetic fascist enforcer he has always wanted in that position. People need to know about and challenge these dangerous moves by top officials in the Trump/Pence regime.