The Attorney General's Power Grab in the Shadow of the Pandemic is Unprecedented, Unconstitutional—and Unnecessary | Opinion

Our Attorney General submitted a proposal last week that would dramatically erode our civil liberties.

Among other things, the proposal suspends habeas corpus—literally translated, "produce the body"—or the right to appear before a judge before being detained. That right is enshrined in our Constitution and without it, Barr could hold Americans indefinitely without a trial.

The gravity of this pandemic and the need for action cannot be used to weaken our commitment to the rule of law, or to destroy our moral fiber as a nation. History shows us the consequences of using fear as a catalyst to erode our democratic laws and principles.

Our justice system is grounded in an unwavering guarantee that each one of us is entitled to certain inalienable rights, including the right to due process before one's freedom is taken away. That is what makes us a free country rather than a lawless state.

Now we face a national emergency of unprecedented proportions. Our hospitals and healthcare workers lack critical supplies and resources. Our citizens are suffering. Our economy is quickly becoming crippled.

We must do better. We must mobilize now to fight this disease and its impacts with every tool in our arsenal. That includes considering actions that otherwise would seem extreme, like using clothing factories to produce masks and ventilators, or asking our citizens to shelter in place or close their shops.

But our country already has the tools, within our Constitutional framework, to take those actions and win this fight.

On March 13, the President declared a national emergency, which unlocked special powers to keep our country safe. Congress has enacted roughly 120 laws that allow presidents such powers to meet precisely these types of threats while maintaining our democracy.

These laws are not without limits. Nor were they meant to be used to capitalize on fear to unnecessarily erode our freedoms.

Yet while the world is consumed by this pandemic and when he thought no one was watching, Attorney General William Barr proposed granting himself immense, permanent powers extending far past the needs posed by this threat.

For example, the proposal grants Barr personally the power to ask any chief judge to hold a citizen, "whenever the district court is fully or partially closed by virtue of any natural disaster, civil disobedience, or other emergency situation." What qualifies as such disobedience or emergency is left, once again, to Barr. So Barr would be able to hold any American—man, woman or child—indefinitely at his own discretion, whether related to COVID-19 or not, without trial.

The proposal also prevents people with COVID-19 from even applying for asylum. The most vulnerable populations around the world, including children with credible fear for their lives whom we are required under the Refugee Convention to protect, would be needlessly turned away.

If this were about COVID-19, the proposal would suspend only certain rights narrowly tailored to fighting this disease. We can limit in-person interactions and protect our health without ignoring the Constitution or violating our international duties.

Barr's argument may sound familiar. Our government has tried to use the panic of the moment to abuse power before.

Our Constitution explicitly provides for the only circumstances in which habeas corpus may be suspended. Article One, Section 9, clause 2 demands that "the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." The handful of times our government has used that clause—all predating 1950—were in situations of extreme political violence.

These suspensions occurred in the Civil War, during Reconstruction, and during the Philippine Commission. The last was after Pearl Harbor, when we sent Japanese Americans to internment camps for years without trial or due process.

President Reagan signed a bill in 1988 issuing a formal apology to those Americans and recommending monetary reparations, which were sent by President George H. W. Bush in 1990. With those checks, President Bush signed an apology, reading in part: "We can never fully right the wrongs of the past. But we can take a clear stand for justice and ... renew[] [our] traditional commitment to the ideals of freedom, equality, and justice."

As we fight this crisis, it is incumbent on our government to remain committed to those values, not repeat the mistakes of our past.

There is no underestimating the impact of this pandemic. We in Congress are committed to using all available resources to protect our country.

But we must also remember that our democracy is built to withstand this moment. We live in a free society because we require that that no one branch of government—no one person—is above the law, no matter what crisis we face.

America is resilient. We will beat this. And when we do, let us be sure that in the thick of the fight, we stayed true to who we are.

Rep. Eric Swalwell (D-Calif.) serves on the House Judiciary and Intelligence committees, and is co-chair of the Democratic Steering and Policy Committee. Follow him on Twitter at @RepSwalwell

The views expressed in this article are the author's own.​​​​​

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