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DOJ Asks Congress to Pass Law That Could Indefinitely Detain People Without Trial

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  • In a series of requests for proposed legislation to address the coronavirus pandemic, the Department of Justice is asking Congress to enact a law that would allow some judges to indefinitely detain a person without the right to trial.
  • The DOJ is also asking for Congress to suspend the statute of limitations for arrests and pass a law explicitly saying that migrants cannot apply for asylum if they have COVID-19.
  • The requests were met with intense criticism by both Republicans and Democrats, though the DOJ has defended them, saying it worked with Congress and federal courts to develop the measures.

DOJ Requests Emergency Powers

The Department of Justice has asked Congress to grant it certain new emergency powers, including the ability for Attorney General William Barr to ask the chief judge of any district court to pause court proceedings, which could indefinitely detain people without trial.

The details of the requests were originally published by Politico on Saturday and they come as a response to the coronavirus pandemic.

Specifically, the DOJ is asking Congress to allow it the power to ask district courts to indefinitely pause court proceedings “whenever the district court is fully or partially closed by virtue of any natural disaster, civil disobedience, or other emergency situation.”

Further, that proposal would apply to “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.”

That request could have serious implications, most notably the suspension of habeas corpus, which is a person’s right to appear in front of a judge after being arrested. 

For its part, the DOJ is justifying this request by saying that, currently, judges can already pause judicial proceedings in an emergency; however, this new legislation would allow them to handle emergencies “in a consistent manner.” 

Nonetheless, in an interview with Politico, executive director of the National Association of Criminal Defense Lawyers, Norman L. Reimer expressed concern.

“Not only would it be a violation of [habeas corpus],” Reimer said, “but it says ‘affecting pre-arrest. So that means you could be arrested and never brought before a judge until they decide that the emergency or the civil disobedience is over. I find it absolutely terrifying. Especially in a time of emergency, we should be very careful about granting new powers to the government.”

According to Politico, Reimer also called the possibility indefinite suspensions of court rules “deeply disturbing.” 

DOJ Makes Several Other Requests

In its draft for proposed legislation, the DOJ also made several additional requests. 

Among those, it asks Congress to suspend the statute of limitations for criminal investigations and civil proceedings during a national emergency and “for one year following the end of the national emergency.”

It’s also asking to change the Federal Rules of Criminal Procedure in some cases to expand the use of video conference hearings. Under current law, if a person consents to it, they can appear at their hearing over a video conference call and have their charges read that way. 

Now, the DOJ is asking Congress to let some of those hearings happen without defendants’ consent.

“If it were with the consent of the accused person it would be fine,” Reimer told Politico. “But if it’s not with the consent of the accused person, it’s a terrible road to go down. We have a right to public trials. People have a right to be present in court.”

Another big request is that the DOJ is asking Congress to pass a law that would explicitly bar asylum seekers from claiming asylum if they have tested positive for COVID-19.

That request comes as the Trump Administration has already announced it will start barring entry to migrants at the southern border. Notably, that already includes asylum seekers there.

DOJ Requests Met with Intense Criticism

While the requests would be unlikely to pass a Democratic-led House of Representatives, the highly controversial draft legislation has largely been met with opposition both by Democrats and Republicans. 

Among notable reactions, Republican Utah Senator Mike Lee—who is currently one of five U.S. Senators self-quarantining—said of the requests, “OVER MY DEAD BODY.”

“@realDonaldTrump, please refute and disavow this immediately,” he said. 

In an interview on CNN with Jake Tapper Sunday morning, Democratic Representative Alexandria Ocasio-Cortez called the requests “abhorrent.

“This is not a time,” she said, “and you know, there is a long history in this country and in other countries of using emergencies as times to really start to encroach upon people’s civil rights. And, in fact, this is the time when we need them the absolute most. We have to keep an eye out for these kind of authoritarian and frankly this expansion, or rather suspension, of rule of law.” 

Former RNC Chair and former Lieutenant Governor of Maryland Michael Steele also blasted the requests, saying on Saturday, “NO!! This is NOT a slope we want to get on. Suspending Constitutional Rights!? With this crew?!  OH HELL NO!”

Richard Painter, the former White House Chief Ethics Lawyer for George W. Bush, called on Barr to resign on Monday. 

DOJ Defends Request

At the same time, the DOJ has defended its requests. Sunday night on Twitter, spokesperson Kerri Kupec tried to clarify the situation by outlining the DOJ’s reasoning.

“There has been some confusion re: reports about DOJ asking Congress for certain “emergency powers,” she said. “This was triggered by Congress asking DOJ for suggested proposals necessary to ensure that federal courts would be able to administer fair and impartial justice during [a] pandemic.”

Kupec then said the draft proposal was “developed in consultation w/ Congress and federal judiciary to help federal judges more consistently manage cases w/in their districts & protect interests of justice during this national emergency.”

“Because of pandemic-related measures, courts are closing and grand juries are not meeting,” she added. That means prosecutors may not be able to indict criminals before a statute of limitations expires, or dangerous criminals who have been arrested may be released because of time limits.”

Kupec said that authority would end once the national emergency was over if a chief justice found that emergency conditions were no longer affecting the federal courts. 

“Bottom line: The proposed legislative text confers powers upon judges.  It does not confer new powers upon the executive branch. These provisions are designed to empower the courts to ensure the fair and effective administration of justice.”

See what others are saying: (NBC News) (CNN) (Rolling Stone)

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Trump Signs Order Allowing Former Troops to Be Called Upon for Coronavirus Fight

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  • President Trump signed an executive order that allows for former troops to be brought back to active duty to help fight the coronavirus pandemic.
  • This is not an immediate order to call former service members back, but it is typically used when the military is in need of specific skill sets, like persons with high demand medical capabilities. 
  • Officials are still reviewing who might be activated.
  • The order comes just days after the Army called upon former service members to voluntarily rejoin and help in the military’s response efforts. Over 14,000 have expressed interest as of Friday. 

Trump Signs Executive Order

President Donald Trump signed an executive order Friday that allows the Pentagon to bring former U.S. troops and members of the National Gaurd and reserve back to active duty to help those already battling the county’s coronavirus outbreaks.

During his press conference Friday night, Trump said the decision allows the federal government “to mobilize medical, disaster and emergency response personnel to help wage our battle against the virus by activating thousands of experienced service members including retirees.”

“We have a lot of people, retirees, great military people — they’re coming back in,” Trump added.

What This Means

The executive order released by the White House states that anyone recalled can remain on active duty for up to 24 months straight. It provides the Department of Defense and the Department of Homeland Security the authority to order as many as 1 million individuals at one time, however, it is not an order to do so. 

According to Pentagon spokesperson Jonathan Hoffman, the order applies to units and individual members in the National Guard and Reserves and certain Individual Ready Reserve members who are normally in an inactive status.

Hoffman said that decisions about who may be activated are still being reviewed, but he added, “Generally, these members will be persons in Headquarters units and persons with high demand medical capabilities whose call-up would not adversely affect their civilian communities.” 

As of now, the Individual Ready Reserve contains 224,841 members, according to the Department of Defense, and nearly 11,000 of those members “have medical capabilities.”

“This is a dynamic situation, we do not currently have a projected number of expected activations, but the Department is now fully authorized to make activations as needed,” Hoffman said. 

He also stressed that the departments would consult with state officials before using any National Gaurd Reserve Component units under the executive order.

Earlier this week, the Army called upon former service members to voluntarily rejoin and help in the military’s pandemic response efforts. The Army said the initial response has been positive, with at least 14,6000 people expressing interest as of Friday.

See what others are saying: (Politico) (CNN) (Fox News)

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FDA Authorizes Portable Test Kit That Can Detect COVID-19 in 5 Minutes

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  • The FDA has approved the use of a new coronavirus test kit that can give positive results in as little as 5 minutes and negative results in 13, leaps faster than the hours and sometimes days laboratory tests normally take. 
  • The tests are run on a lightweight and small portable device that can be used in emergency rooms, urgent care clinics, and even outside hospital walls.
  • Abbott, the medical device company that makes the kits, plans to send out 50,000 tests a day starting next week.

New Test Approved

The U.S. Food and Drug Administration gave Emergency Use Authorization to the medical device company Abbott for a new coronavirus test kit that gives results within minutes.

Abbott announced the news in a Friday press release, saying it plans to start delivering 50,000 tests a day beginning next week. The tests run on the company’s ID NOW platform, a portable device about the size of a small toaster than weights only 6.6 pounds.

Its portability means it can be used directly in an emergency room or urgent care clinic and even, “outside the traditional four walls of a hospital in outbreak hotspots.”

The company called it “the fastest available molecular point-of-care test for the detection of novel coronavirus(COVID-19), delivering positive results in as little as five minutes and negative results in 13 minutes.”

Second Rapid Test to Be Approved by FDA 

The approval from federal health officials means that regulators were satisfied with the test’s validation data and are confident that its benefits outweigh any risk, like false positives or negatives. 

The FDA’s approval marks the seconds time it has green-lit a fast working test that could accelerate testing across the country.  Last week, it approved a 45-minute rapid point of care test by the molecular diagnostics company Cepheid. However, that test is primarily intended for emergency rooms and hospitals, not doctors’ officers or urgent care clinics.  

Still, those turnaround times are leaps faster than the hours to days it takes most laboratory tests to bring results. 

Medical Shortages Still Cause Concern 

The approval of the Abbott test comes as cities across the nation battle with numbers of potential patients that surpass available tests and resources. Even with insufficient testing, the United States became the country with the largest number of reported cases of coronavirus on Thursday, exceeding China and Italy. By Friday, the U.S. hit more than 100,000 cases. 

Many fear that shortages of other critical medical equipment, like masks and swabs, could stifle the new rapid test’s impact. That’s because the kit requires a swab sample collected from patients, and many health care facilities are running desperately low on the tools needed to safely collect those samples.

The Center for Disease Control issued guidance Tuesday that allows some patients to collect their own nasal swabs in health care facilities, in an effort to reduce the amount of protective equipment needed for health care workers. 

On the opposite end, however, others note that fast and efficient testing can help medical professionals determine how much protective equipment they actually need to wear when interacting with a patient, as well as what kind of care to provide. Since this test can be done in a doctor’s office, it could even potentially help diagnose patients with mild or asymptomatic cases of the virus and help stop them from unknowingly spreading it. 

Experts also say drastically increasing testing capacity can help get the economy back on track sooner. With increased testing, measures like keeping everyone at home could be replaced with more targeted identification and isolation of those infected. 

See what others are saying: (The Hill) (CNBC) (CNN

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EPA Limits Environmental Regulations During Coronavirus Crisis

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  • The U.S. Environmental Protection Agency announced Thursday that it is scaling back its enforcement of environmental rules during the coronavirus emergency as businesses face challenges like layoffs and accessibility issues.
  • The temporary policy allows companies to monitor their own compliance with environmental laws, and the EPA said it will not issue penalties for violations of certain reporting requirements.
  • Many critics slammed the move, arguing that it opens doors to excess pollution and does not prioritize the health and safety of people and wildlife.   
  • The EPA defended the policy, saying it has reserved its authorities for situations other than routine monitoring and reporting and will consider the pandemic’s impacts on a “case-to-case basis.”

Temporary Policy 

The U.S. Environmental Protection Agency (EPA) says it will limit the enforcement of certain regulations as the coronavirus pandemic continues, leaving companies in charge of monitoring their own compliance with environmental laws. 

The agency unveiled the temporary policy on Thursday, arguing that businesses are running into obstacles like layoffs and accessibility issues as the virus alters normal life across the nation.

“EPA is committed to protecting human health and the environment, but recognizes challenges resulting from efforts to protect workers and the public from COVID-19 may directly impact the ability of regulated facilities to meet all federal regulatory requirements,” EPA Administrator Andrew Wheeler said in a statement.  

Under normal circumstances, companies must report when their facilities release a certain amount of pollution into the air or water. Now, that requirement will be put on hold for the time being. 

“In general, the EPA does not expect to seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations in situations where the EPA agrees that Covid-19 was the cause of the noncompliance and the entity provides supporting documentation to the EPA upon request,” the policy states.

The agency also said it would exercise “discretion” in enforcing other environmental rules. It noted that the policy does not apply to criminal violations or hundreds of the country’s most toxic waste sites that fall under the Superfund act. The EPA also said it expects public water systems to maintain high standards. 

“Public water systems have a heightened responsibility to protect public health because unsafe drinking water can lead to serious illnesses and access to clean water for drinking and handwashing is critical during the COVID-19 pandemic,” the policy says.

The memo said that the changes will apply retroactively beginning on March 13, with no set end date indicated. 

Criticism of New Policy

Some, including people in the oil industry, had been asking for these regulations to be loosened, but others slammed the EPA’s choice, claiming it is too broad and lax. 

Gina McCarthy, who headed the EPA under the Obama administration and is now president of the Natural Resources Defense Council, called the policy an “open license to pollute.” 

Some called the changes “outrageous” and “evil,” accusing the EPA of prioritizing businesses over the health of individuals and wildlife.

Prominent figures in the climate change fight slammed the move as well.

“The EPA uses this global pandemic to create loopholes for destroying the environment,” teenage climate activist Greta Thunberg tweeted. “This is a schoolbook example for what we need to start looking out for.”

Others pointed out the irony of suspending rules that preserve air quality while a respiratory disease makes its rounds across the country. 

“What part of, ‘air pollution increases our vulnerability to respiratory diseases LIKE CORONAVIRUS,’ is not clear, EPA?” one Twitter user wrote.

Defense of Policy

The EPA stood behind their move and did not agree with its classification as a dismissal of regulations. 

“It is not a nationwide waiver of environmental rules,” Andrea Woods, an E.P.A. spokeswoman, told The New York Times. “For situations outside of routine monitoring and reporting, the agency has reserved its authorities and will take the pandemic into account on a case-by-case basis.”

Susan Parker Bodine, the EPA official who issued the policy, said that it does not excuse organizations from consequences if they do committ environmental violations.

“If you do have violations of your permit, you’re still obligated to meet your permit limits, you’re supposed to do everything possible,” Bodine told ABC. “And after the fact the agency will take that all into consideration but there isn’t a promise of no penalties in those kinds of situations.”

“If you have an acute risk, if you have an imminent threat … the facility has to come in and talk to their regulator, their authorized state or come into the agency,” she added. “And the reason for that is that we want to, we want to put all of our resources into keeping these facilities safe keeping communities safe.”

See what others are saying: (New York Times) (The Guardian) (CNN)

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