Habeas Corpus and the Pandemic
The Justice Department has reportedly requested that Congress grant district court chief judges the power to pause court proceedings in emergency situations. Although it is highly unlikely that the proposal will be accepted by the Democrat-controlled House—and in fact, there is rare bi-partisan opposition to the proposal—the mere suggestion of such a move is alarming because of its implications for habeas corpus.
Habeas corpus is the right for a person under arrest or who is otherwise in state detention to be brought before a court to determine if their detention is lawful. And the proposal could eviscerate this important principle. Caroline Fredrickson of the Brennan Center for Justice stated in a Washington Post piece that the proposal, as reported, “would allow a judge to order someone who had simply been arrested, but not charged or convicted, to be held until the judge determines the emergency is over.” Therefore, the proposal could allow for indefinite detention of people without trial.
- Can the right of habeas corpus ever be revoked?
Yes, under extreme cases. The Suspension Clause of the 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.” And it has only been suspended four times in American history. Most notably, Lincoln provoked considerable controversy by suspending the privilege during the Civil War without congressional approval. Furthermore, the federal government has, at times, attempted to revoke or interfere with habeas rights without invoking the Suspension Clause, including after 9/11 for enemy combatants. These post 9/11 actions by the federal government led to significant litigation, ultimately resulting in a series of cases in the Supreme Court, which affirmed habeas rights, even for non-citizens detained at Guantanamo Bay. Suffice it to say, the interference with the right of habeas corpus is not taken lightly. Without it, we are deprived of one of our major defenses to overbearing state authority. - What is the DOJ’s response?
A DOJ spokesperson issued a statement on twitter, which claimed, among other things, that: “The proposed legislative text confers powers upon judges. It does not confer new powers upon the executive branch.” However, this does not seem to address or ameliorate important concerns regarding habeas corpus that have been raised in recent days. And regardless, the recent controversy speaks to the crisis of faith between the Justice Department on one hand and Congress and the public on the other. Furthermore, the near unanimous uproar has underscored our collective concern for what could happen to our rights in a state of emergency. The nation needs to be vigilant and think through how to effectively deal with the present crisis while preserving our constitutional liberties.
The Dangers of Covid-19 and the Surveillance State
Some nations are redirecting invasive and technologically advanced surveillance practices, designed to combat crime and terrorism, to fight Covid-19. In Israel, Prime Minister Benjamin Netanyahu, citing emergency powers, unilaterally authorized the use of the country’s previously undisclosed trove of cell phone data to track the location history of those suspected to have the virus. China, in addition to cell phone tracking, has gone the extra step of collecting people’s biometric data (such as temperature levels), to identify potentially infected patients before an official diagnosis. This is made possible by facial-recognition technology that can be linked up with heat sensors, capturing body temperatures while simultaneously determining whether people are abiding by protocols and wearing masks. Biometric companies are supplying this technology to China and other countries such as Thailand and South Africa.
- Are emergency surveillance powers worth it?
It’s complicated. In emergency situations, governments may be justified in utilizing extraordinary powers, but temporary measures in a state of crisis have a way of becoming permanent. In addition to the obvious possibility of governments continuing to track people on their phones, as Yuval Noah Harari points out, if biometrics can be used to determine someone’s temperature, they can also be used to determine what makes someone smile or laugh. Why is this important? The visual cues we give off reflect our entire psychology. The government could potentially determine our political perceptions simply by studying the way we react to scenes in a movie. We would no longer have anything even resembling privacy.Indeed, imagine you’re at a public cafe with your friend casually chatting, and you frown slightly at the mere mention of the authoritarian leader’s name. A facial recognition camera zooms in on your reaction, records it, and transmits this data to the local police headquarters. Later that day, police arrest you for disturbing the social order. Yes, this is just a hypothetical. But what might appear a distant Orwellian nightmare could well become an Orwellian reality if we let our guard down. Therefore, in addition to being careful about choosing the right tools to fight the pandemic in the short-term, we must ensure that these tools have clear sunset clauses so that they cannot be used to exert power over the long-term. - What’s an alternative, less-invasive method to flattening the curve?
The alternative to the surveillance model, as Harari suggests in his article, is citizen empowerment. This method has been pursued (imperfectly) by South Korea, Taiwan, and Singapore. Though these nations did deploy intrusive surveillance tools such as tracking cell phone location data, they nevertheless prioritized extensive testing and transparency, implemented widespread education about social distancing, and built public trust and cooperation by issuing clear directives about who should do what. Democracies around the world should try and replicate this model in order to tackle the pandemic.
___
Democracy At Work
Female Participation in Civil Society in Somaliland
There is an annual marathon in Hargeisa, the capital of the self-declared state of Somaliland, (considered by much of the world to be an autonomous region of Somalia) that attracts runners from 16 countries. Notably, in recent years, more and more local women have participated in the 10-km event, challenging society’s patriarchal norms. This is part of a larger pattern of female participation in civil society in Somaliland. Indeed, women in Somaliland are breaking into new career paths in medicine, business, and education. And according to a recent study from Nagaad, a network of Somaliland’s NGOs for women, “84 percent of survey respondents recognise the importance of establishing a political quota for women.” There is a growing understanding in Somaliland that women should be represented in parliament.
- What is the relationship between Somaliland and Somalia?
In 1960, the Somali Republic was formed from the union of the colonies of British and Italian Somaliland. This union came to a close when Somaliland, the former territory of British Somaliland, declared its independence in 1991.Somalia is a country that has been ravaged by decades of civil war, terrorism, and internal unrest. Somaliland, although not perfect, has been a relative success story. A democracy with peaceful transfers of power, Somaliland has created the stability necessary for a growing economy. In turn, this has enabled civil society and cultural life to grow, in spite of no country recognizing Somaliland as an independent state. Interestingly, lack of global recognition has helped forge the shared identity necessary for Somalilanders to work together. - Is this an isolated story about women’s empowerment or part of a larger trend in the region?
The expanding presence of female athletes and civic leaders in Somaliland is indicative of a broader trend of progress for women in the Horn of Africa. In the selection process for the 2016/2017 parliament, Somalia instituted a 30% quota for women, although reaching that quota has been a challenge. And in 2018, Ethiopian Prime Minister Abiy Ahmed made sure 50% of his cabinet was made up of women and appointed Sahle-Work Zewde as Ethiopia’s first female president. Though still symbolic, these changes may bode well for women in these societies if their more-representative governments turn their attentions to critical women’s issues like the high prevalence of female genital mutilation and child marriage.
Chile: Is a New Constitution Needed?
Until recently, Chile had been wracked by massive protests that started in October 2019 in response to economic inequality and poor public services. The protests have, at times, devolved into serious violence, but they have mostly remained peaceful, representing the Chilean people’s thirst for real reform.
As a concession to protesters and an opposition movement clamoring for structural change, the Chilean government agreed to a plebiscite (now pushed to a later date due to the coronavirus), on drafting a new constitution. The plebiscite (AKA referendum) will also ask voters what method they prefer for drafting the new constitution: a “mixed-convention” of half-current parliament members and half-elected just for the convention or a pure “constitutional convention.” Polls indicate that the majority of Chileans will vote for the plebiscite, although it is unclear which flavor of convention they prefer.
- Is the plebiscite likely to result in positive change for Chile?
Advocates for a new constitution claim that it will restore stability and public confidence in the government by meeting protesters’ demands for a greater state role in ensuring economic and social equality. And importantly, it could replace anti-democratic aspects of the current constitution, which have been in place since the Pinochet era. However, there are concerns that a new constitution could move the nation away from a political and economic model that has made it one of the most developed countries in Latin America. To be sure, there are risks to Chilean constitutional reform, but given the scale of protests (over one million people on October 25, 2019), as well as the widely-shared desire for a new constitution, it is a risk worth taking. Moving political disagreements from the streets to a deliberative institutional process is an essential step in a properly functioning democracy. Indeed, it is imperative that the Chilean government and civil society work together to produce a new governing consensus that can alleviate the crisis paralyzing the country in recent months. - What is Chile’s history of democracy?
Chile is a country with a long democratic tradition going back to the 19th century that was interrupted by the Pinochet dictatorship. In 1973, General Augusto Pinochet staged a coup against the democratically-elected Marxist, Salvador Allende. Pinochet’s regime would go on to torture and murder thousands and drive hundreds of thousands more Chileans into exile. Since the transition back to democracy in 1990, Chilean governments have amended the constitution to be more democratic, and have made strides to make the Chilean economy work for a broader segment of society. But as recent protests have shown, some Chileans are dissatisfied with the pace of change. That being said, given Chile’s history of democracy and the largely peaceful nature of the recent protest movement, there is cause for optimism moving forward.
