The US Department of Justice has reportedly sought a broad expansion of its authority during emergencies—much like the one in which the country now finds itself. The new powers would allow the agency, among other things, to detain people indefinitely without trial.
A handful of lawmakers on both sides of the aisle have already said they would block the request. And to some it might seem crazy to think the government would ever resort to such measures.
But the truth is that governments, both federal and local, are already flirting with emergency powers to fight the spread of coronavirus that contravene the rights residents normally take for granted. America has allowed indefinite detention before, and recently. And the current US president, Donald Trump, has made no secret of his views on executive power.
Last year, he claimed that Article II of the Constitution gave him “the right to do whatever I want as president.”
This is, according to Andrea Pitzer, an expert on mass detention and author of One Long Night: A Global History of Concentration Camps, exactly the climate that could lead a country down a path it may eventually regret. It often begins, Pitzer said, with clearly defined and reasonable goals—apprehending terror suspects, say, or containing a disease—and then devolves into something very different.
“Humanity has a long history of using indefinite detention without trial to do horrific things,” Pitzer told Quartz. “With such broad powers and a lack of accountability, [and] given the president’s current aggressive bending of law to detain asylum seekers, it’s hard to imagine any vulnerable community in the US that wouldn’t be at risk in this situation over time.”
In the most recent example, under its so-called zero-tolerance immigration policy, the Trump administration has been detaining asylum seekers and other migrants, including children, as they wait for their cases to make their way through immigration courts. Those courts are overworked and understaffed, meaning some migrants are already facing what is essentially indefinite detention.
To give another recent example, in response to the 9/11 terror attacks, the George W. Bush administration implemented a policy that allowed the US to detain enemy combatants without trial, a practice that continued under president Barack Obama. Trump’s Justice Department, meanwhile, argued last year in a Supreme Court filing that there is nothing preventing the US from holding “one of its own citizens” indefinitely if they are suspected of terrorism.
During WWII, US president Franklin Roosevelt established the War Relocation Authority, which sent at least 110,000 people of Japanese heritage, most of them American citizens, to internment camps. The “enemy,” in this case, was an entire race that posed no actual threat to national security.
Pitzer points to the Internal Security Act of 1950 as yet another example. The law was passed after WWII despite a veto from then-president Harry S. Truman, who called it a “long step toward totalitarianism.” The act authorized the preemptive detention of “Communist subversives” who posed threats to internal security. It wasn’t until 1971 that Congress repealed the provision of the law that allowed for those detentions. There is “zero reason” to believe that Trump would show the same sort of restraint as Truman, Pitzer said.
Public health issues like the coronavirus pandemic have long been used by governments to deny rights to groups of people, she explained. In the 1990s, Pitzer said, thousands of asylum seekers from Haiti—some of them HIV-positive—were intercepted at sea by the US Coast Guard and detained indefinitely at the US military base in Guantanamo Bay, Cuba. Trump’s attorney general, William Barr, who was serving as president George H.W. Bush’s attorney general at the time, oversaw the program and reportedly believed that “everyone who was HIV-positive should be returned to Haiti.”
Back in charge of the Justice Department again, Barr’s latest request for expanded powers of indefinite detention came shortly after Trump called on immigration authorities to turn away all asylum seekers attempting to enter the country, citing fears they may bring coronavirus with them.
The Justice Department’s move for vast new emergency authority has not yet been granted and it’s fairly unlikely it will get past the Democratic-led House. At the same time, it’s a situation Matthew Kroenig, a former CIA analyst and Pentagon staffer who now teaches international affairs at Georgetown University, has seen play out elsewhere.
“The real question is, when the crisis passes do things snap back or does the executive branch try to hold onto those powers?” Kroenig told Quartz. “That’s one of the ways we’ve seen democratic backsliding [in other countries], where the president declares emergency powers, the crisis passes, and he or she doesn’t give them back.”