Patterson Pontificates: Don’t lose track
It is a machiavellian cliche to comment that statesmen tend to exploit crises for political gain. The Patriot Act, for example, was unlikely to ever reach the Senate floor had the Sept. 11 attacks not provided America’s uniquely heightened security fears and near-ecstatic patriotic fervor. The outbreak of coronavirus and its subsequent hegemony over the news cycle has likewise provided an unprecedented smokescreen for those in the halls of government who would seek to implement policies which, in lieu of a crisis, would otherwise be mothballed.
In late March, Attorney General William Barr issued a proposal to Congress that, in conjunction with the emergency powers President Donald Trump acquired on March 13, would further erode the institutions of the American republic designed to keep the executive in check. Barr proposed, among other things, that he be granted the permanent power to order any federal judge to indefinitely hold any citizen without trial “whenever the district court is fully or partially closed by virtue of any natural disaster, civil disobedience, or other emergency situation.”
In effect, Barr requested that the attorney general of the United States (AG) be given the arbitrary authority to suspend anyone’s habeas corpus rights, whether it be for coronavirus-related issues or not, if a district court were deemed (by him) to be unfit to host a trial. Habeas corpus is a right which has been essential to the American experience even before the Revolutionary War: it simply means that anyone arrested for a crime cannot be imprisoned indefinitely without a trial before a judge. It is important because it prevents the state from arbitrarily detaining people without having to prove that they committed a crime.
Article One, Section Nine, Clause Two of the U.S. Constitution states 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 federal government has only ever succeeded in temporarily suspending habeas corpus in times of extraordinary political violence and instability, such as the Civil War. The last time it was accomplished was during the Second World War, when thousands of American citizens of East-Asian descent were sent to Japanese internment camps without trial for multiple years.
Those instances, I hope you’ll agree, were both situated in times of genuine national danger and were dubiously moral, at best. They were also carried out through transparent, elected government machines. Barr’s proposal, contrastingly, asks for this power to be permanently vested in the hands of the AG, an unelected official of the executive branch, to be used unilaterally per the AG’s personal prerogative.
The use of internment camps occurred during wartime and are often cited as one of the great blights on America’s past. I’m emphasizing this point in order to demonstrate that, while suspending habeas corpus may be interpretable as being precedented in American law, it is not precedented by any historical situation that Americans ought to be proud of. Certainly it is not one they ought to be sanguine about recreating.
Should Barr obtain what he wants, it would constitute the most flagrant instance of the executive’s longlasting increase in political power over the judiciary and legislature since the president was given the exclusive right to use nuclear weaponry during the Cold War. It would mean the White House would have, at its immediate disposal, the ability to keep any citizen incarcerated indefinitely without a public trial and without any clear justification. Given the Department of Justice’s (DOJ) already considerable arsenal of legal tools to precipitate arrests and investigations, Barr’s proposal should be cause for extreme scrutiny and scandal.
But this is the coronavirus era.
There was no scrutiny of Barr’s proposal outside of a few scant mentions in the media, and there was no scandal. The public’s understandable craving for perpetual coronavirus updates meant that the AG’s extraordinary proposal went more or less unnoticed by the public.
Barr is unlikely to be successful in his attempt to gain the power to hold Americans without trial at his pleasure, for the time being. Nonetheless, one can expect more attacks on the rule of law to follow suit soon, should this pandemic persist in domineering the media.
In a similar vein, Trump fired the Defense Department’s Acting Inspector General (IG) Glenn Fine on April 7, after Fine was tasked with overseeing the Pandemic Response Accountability Committee (PRAC). This is only the latest in a recent string of Trump’s firing of IGs. PRAC is an oversight body charged with making sure the recent $2.2 trillion economic stimulus package is distributed and administered legally and ethically. Fine was removed because Trump believed he was “biased.”
Trump also fired intelligence community IG Michael Atkinson on April 3. Atkinson oversaw the handling of the Ukraine whistleblower that eventually snowballed into Trump’s impeachment. Trump fired Atkinson due to undocumented “reports of bias.”
In addition to Fine and Atkinson, on April 6 Trump sent five more IG nominees to the U.S. Senate for their approval to fill existing vacancies. Acting IG of the Environmental Protection Agency Sean O’Donnell will replace Fine. General Counsel to the National Geospatial-Intelligence Agency Thomas Monheim will replace Atkinson. In summary, Trump has gotten rid of multiple high ranking IGs in a short span of time and is on-track to replace them with loyalists in addition to the five new IGs on-track to be approved in the Senate.
Although this has sounded alarm bells in the legal community in the form of petitions and dissenting letters from high-ranking government legal officials, it failed to garner much attention in the press. In the 21st century, the press is more or less what the public (and by extension, a large portion of their government) is outraged by.
“A last line of defense in [Trump’s] war on ethics and law is the Inspector General community,” Former Director of the Office of Government Ethics Walter Shaub tweeted. “They’re the eyes of the American people, objective investigators traditionally freed to pursue accountability by the safeguard of bipartisan congressional protection… What began with the fall of the ethics program is entering the end game with the potential fall of the Inspector General community. The government is failing us, safeguards that took two centuries to build have crumbled, and fascism is eyeing this republic like lunch.”
On April 4, DOJ IG Michael Horowitz, who specifically appointed Fine to oversee PRAC, issued a statement in which he harshly criticized Trump’s firing of Atkinson. Legal scholars regarded Horowitz’s decision to publicly write against the president in defense of a former colleague to be unusual and eye-catching.
“Atkinson is known throughout the Inspector General community for his integrity, professionalism, and commitment to the rule of law and independent oversight,” Horowitz wrote. “This includes his actions in handling the Ukraine whistleblower complaint, which the then Acting Director of National Intelligence stated in congressional testimony was done ‘by the book’ and consistent with the law.”
While “fascism” might be “eyeing this republic like lunch,” coronavirus has created an impenetrable fog of media attention through which the public has not yet seen with sufficient attention to deter Trump, Barr or others from making similar authoritarian forays again. Tentative congressional investigations led by Sen. Adam Schiff (D-Calif.) and Sen. Chuck Grassley (R-Iowa) are presently the only hope of holding the White House accountable for what can only be seen in good faith as crisis-exploitations.
One might not view Barr or Trump’s actions with any suspicion, and one might believe that there is a perfectly reasonable explanation animating them. However, I have yet to hear any such explanation made in good faith and I doubt that any reasonable American would argue against more transparency of these actions or similar actions in the future. My worry stems from what I perceive as Trump’s total lack of respect for (and his antipathy towards) any institutions meant to check and balance him, and his pattern of filling government posts with individuals with clear conflicts of interests and questionable credentials; individuals appointed by virtue of their raw loyalty to the president.
When the news broke that multiple senators, including Dianne Feinstein (D-Calif.) and Kelly Loeffler (R-Ga.), had sold millions of dollars worth of stock directly after receiving a briefing on the impending coronavirus threat in late January, the public was riled up and demanded an investigation immediately. That was proof that coronavirus has not entirely made America unable to conjure up the outrage needed to keep politicians’ feet somewhat close to the fire.
It is imperative that the American public, and their elected representatives particularly, not be overwhelmed by the need to focus on coronavirus so much so that all their other duties to the maintenance of the state be neglected. In order for that to happen, a larger proportion of the press must keep sufficient money, resources and manpower on hand to cover stories besides the latest coronavirus figures. Additionally, a larger proportion of the press’s audience must keep sufficient attention span on hand to raise their eyebrows at such stories.
If the press loses track, we lose track. For goodness’ sakes, please don’t lose track.
Mitchell Patterson is the executive editor of The Review. His views are his own and do not represent the majority opinion of The Review’s editorial staff. Patterson may be contacted at JMPatter@udel.edu.