In 1944, Economist F.A. Hayek asserted in his now famed book “The Road to Serfdom,” “’Emergencies’ have always been the pretext on which the safeguards of individual liberty have been eroded.”
The U.S. Department of Justice has reportedly requested a suspension of the rules for habeas corpus in their petition for new emergency powers. This request has troubled conservatives and progressives alike, and it would be a significant lurch closer to the police state Americans fear.
Habeas corpus, or the Great Writ, keeps the government from holding private citizens indefinitely without showing cause. When a detained citizen files a petition for habeas corpus, the executive branch must explain its reasoning for the detention to a neutral judge. Suspending habeas corpus would give federal authorities the right to detain individuals without trial or appeal. Since the signing of the Magna Carta in England in 1215, it has been vital to western legal systems and elemental to human freedom.
For a recent and cautionary tale of hastily expanded police powers gone awry, look no further than the extensive expansion of Foreign Intelligence Surveillance Act (FISA) courts and surveillance in the early 2000s during the height of the “war on terror.” Much of the controversy surrounding the “Russia investigation” emanated from the heavy use of FISA courts. But it was the Republicans of the early 2000s that expanded and buttressed the courts’ powers, against the warnings of Democrats at the time. DOJ Inspector General Michael Horowitz found that FBI investigators misled FISA court judges to obtain permission for the surveillance of President Trump’s former campaign adviser. Now, of course, Republicans are crying foul about the potential abuses of FISA courts.
The Founders of our nation believed habeas corpus was so essential to preserving liberty, justice and democracy that they placed it in the very first article of the United States Constitution. Yet, these are extraordinary times. Minor adjustments to statutes of limitations, speedy trial requirements and other time-oriented issues may be necessary to preserve public safety. But anything that could be implemented in a way that either minimizes habeas corpus or results in indefinite detention should be rejected out-of-hand.
Similarly, the government is right to take steps to quell the public health crisis. But using these circumstances to justify expanded government power and the violation of the basic civil liberties is highly ill-advised.
This is also true at the state level, where shelter-in-place orders are threatening civil liberties. These orders vary in scope from state to state, but California has the strictest state order, in which citizens are not allowed to leave home except for essential outings, or face misdemeanor penalties. In the thickest of ironies, violators of these California shelter-in-place orders could face fines or even be sent to the very same over-crowded jails that California is rightly trying to downsize due to their virus-spreading conditions.
We urge governors to narrowly tailor any limits they place on Americans’ movement in their communities and across states as temporary. A federal shelter-in-place order should be prevented at all costs. Public health should absolutely be protected, but so too should the constitutional rights of Americans under the Constitution.
Americans have mobilized. They are leaving care packages for delivery drivers, donating medical equipment, running errands for neighbors and showing up for essential work even when it may put their health at risk. They’re hosting food drives, donating books to children and buying gift cards to restaurants that have lost business. A Gallup survey from late March found that 92% of Americans are already practicing social distancing.
The Trump administration has begun vaccine testing and is using its resources to aid the production of necessary medical equipment. It has restricted foreign access to the country. The White House has deferred tax payments and has enabled Americans to get tested without copayments. The Senate and House have finally passed a stimulus package. Everyone – the general public and lawmakers alike – is doing their part to minimize the spread of this virus and protect those who are at risk, both medically and financially.
These actions are justified. But a rushed and dramatic expansion of the police state is not warranted, and no circumstance – not even a national emergency – is an excuse for violating Americans’ fundamental civil liberties.
Timothy Head is the executive director for the Faith & Freedom Coalition.
David Safavian is the general counsel of the American Conservative Union.