When a Public Health Crisis Becomes a Threat to the Rule of Law

Recent reports that the Department of Justice is asking Congress for new emergency powers to combat the COVID-19 pandemic was the news many of us have been fearing.

Among the authorities sought by DOJ, according to news reports, are the power to detain people indefinitely without trial, the power to request that federal judges pause trials already in process, and to pause the statute of limitations for certain offenses so that the government can pursue its claims up to one year after the national emergency is over. The upshot of these proposals is that someone charged with a crime, rightly or wrongly, could be detained for an unlimited amount of time and never given the opportunity to challenge the accusations against them.

If any of this sounds like it might not be consistent with our system of law, that’s because it’s not. The Sixth Amendment to our Constitution guarantees to all those accused of a crime “a speedy and public trial,” and the constitutional “great writ” of habeas corpus provides those detained a mechanism for challenging their detention before a court. The Constitution specifies that habeas corpus cannot be suspended “unless when in Cases of Rebellion or Invasion the public Safety may require it.” While President Lincoln famously suspended the writ during the Civil War, experts of varying ideological persuasions now agree that this is a power for Congress solely to exercise, and only in extraordinary circumstances.

Any attempt by this administration to enlarge its power at this time of crisis should be seen for the opportunism that it is. We’ve feared this could happen because we’ve been here before. In the wake of the horrific terrorist attacks on September 11, 2001, the “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism,” better known as the USA-PATRIOT Act, greatly expanded the federal government’s surveillance authority in the name of national security. The powers granted to law enforcement under the Act had long been on the FBI’s wish list, and 9/11 presented the precise moment to grant those wishes, and quickly.

Unfortunately, fear and panic led to a hurried process that ignored the constitutional problems and the serious risks that the over 200-page PATRIOT Act posed to our civil liberties. Today, DOJ’s requests pose the same risks. It makes no difference whether the enemy be human or viral.

Moreover, while this virus plainly presents a new and dangerous threat, it is far from clear that the powers needed by the government to meet it are new. They may already exist in a handful of emergency powers at the federal government’s disposal, such as the Defense Production Act, the Stafford Act, and the Public Health Service Act (not to mention the traditional police powers of states and localities pursuant to which they can take measures to address the welfare of their constituents). Yet these authorities have not been fully utilized. I strongly suspect that the same is true of the current powers available to the Department of Justice.

As the only U.S.  senator to vote against the PATRIOT Act in 2001, I clearly recall the legitimate concerns that take hold in a crisis. At the time of that vote, however, my concern was that this appeared to be an attempt to insert an old and unrelated wish list into the new anti-terror legislation. This had the potential to fundamentally change our democracy and unnecessarily curtail American freedoms. Those of us who believe in the rule of law must defend it and stand up to this administration when it seeks to opportunistically and unnecessarily expand its powers at the expense of our liberties.

A Pandemic Is No Time for Secrecy

During a public health emergency such as the coronavirus pandemic, information about the government’s actions isn’t just necessary to maintain a functioning democracy — it also saves lives. But as the nation learns more about the Trump administration’s costly failures to prepare for the pandemic, there is another danger that could exacerbate the outbreak, and that is a lack of transparency.

Among the multiple missteps, missed chances, and questionable decisions of the Trump administration during the early days of the U.S. coronavirus outbreak was the order to make top-level coronavirus meetings classified. That decision hampered the government’s response by restricting key information about travel restrictions or the scope of infections and excluded top experts who lacked the necessary security clearance.

Officials told Reuters, which first reported on the series of classified meetings at the Department of Health and Human Services, that the order “came directly from the White House.” Another official said, “It seemed to be a tool for the White House — for the [National Security Council] — to keep participation in these meetings low.” Such a motivation tracks with the White House’s excessive focus on message control and political fallout. And, according to Reuters, the classified discussions were held beginning in January, a time when the president and his allies were dangerously downplaying the coronavirus threat.

As of this writing, the administration has not released a defensible justification for its decision to classify these meetings. Indeed, the power of the federal government to withhold pandemic-related information from the public is legally tenuous at best, especially if, as Reuters’s sources implied, the classification order came in a White House directive.

Analogizing this situation to a Freedom of Information Act (FOIA) request highlights the questionable reasoning behind the government’s decision. When the government responds to a FOIA request, it may only withhold information that falls within one of nine statutorily permissible exemptions. For instance, confidential information that would constitute an invasion of privacy or endanger law enforcement personnel may be lawfully withheld.

But, presumably, these coronavirus briefings do not contain personally identifiable information of individual patients, nor are they likely to contain information that could endanger law enforcement professionals. In fact, these briefings implicate only one of those exemptions — exemption 1, which protects classified information from disclosure. That is, because the briefings are classified, they may be kept from the public. But why are the briefings classified at all?

As national security experts have noted, it is unclear whether the information in these briefings merits classification in the first place. In order to be considered “properly” classified, information must meet certain requirements: The government must give a plausible and logical reason as to why disclosing the information would damage national security. So far, the Trump administration has provided no such reasoning, presumably arguing that disclosing this information could harm national security. But by failing to state its reasons, the administration undermines the legal basis for its decision to keep these briefings secret.

Given this administration’s history of restricting information, it appears that classification here is intended not to protect national security but to limit public scrutiny of the government’s response to the outbreak. Indeed, a bioterrorism threat is the more appropriate situation in which public health implicates national security, justifying classification. That is not the case here.

This isn’t the only example we’ve seen of the government withholding information from the public related to coronavirus. When it was announced that Gilead had secured “orphan-drug” status for a potential treatment for coronavirus — a designation that provides market exclusivity for drugs that treat rare diseases, which Gilead subsequently asked to be withdrawn following public outcry — the Food and Drug Administration refused to disclose the date Gilead had filed for this status, contending, questionably, that it was confidential commercial information.

These actions raise serious concerns about the administration’s potential to hide important information at a time when government transparency is vital. Americans self-isolating and caring for loved ones can already see the dramatic effects public health decisions have on our day-to-day lives. Holding officials accountable for their actions is critical, particularly during emergencies when governors, the president, and agency heads are exercising broad powers without facing the normal checks and balances. And with states now being forced to compete for limited resources thanks to inadequate federal assistance, transparency in how state and local public health officials are responding to the crisis is just as important.

For records that haven’t been legitimately classified, the Freedom of Information Act and state open records laws can provide a valuable window into the government’s actions. Our organization, American Oversight, has already filed more than 100 federal and state public records requests to shed light on the administration’s failed testing rollout, its troubling communications strategy, and the impact of the virus’s spread on vulnerable communities. Where necessary, American Oversight is also prepared to fight legally questionable redactions and withholdings, including those based on the administration's abuse of the classification process.

Of course, the current crisis may present some severe limitations on the ability of offices, particularly smaller state and local offices, to meet their transparency obligations. Some are to be expected; for instance, we have inserted language in our requests to make it clear that we should not expect offices that lack dedicated staff for searching records to respond to requests during the peak of the crisis, and are engaging with records officers to accommodate reasonable concerns. But there remains the danger that officials could use the current emergency to skirt those obligations and prevent the public from knowing how its government is responding to the crisis.

We are already seeing worrying signs that this might be happening at the federal level. Perhaps most notably, the FBI has closed its FOIA office through (at least) the end of March and is seeking indefinite stays of deadlines in litigation. In addition, the State Department is requesting at least 60-day extensions on production deadlines, as well as indefinite litigation stays in some of its cases. Short-term extensions for agencies to adjust to changing circumstances, or longer ones where justified, are not necessarily objectionable. But what is unacceptable are long-term delays absent any explanation other than citing the coronavirus. While an agency in a FOIA lawsuit may request that a court issue a stay allowing a delay in processing the request, the burden is still on the agency to seek and justify such a stay. And as these disruptions extend into the longer term, ultimately it is the responsibility of federal agencies to figure out how they will meet their legal obligations, including FOIA, and not just continue to make excuses to evade them.

Ultimately, transparency is just as, if not more, important now than it ever has been, with the government at all levels taking actions that will have grave impacts on the public’s health and civil rights, actions that have already intruded deeply into daily lives. The public has a right to know what government officials knew and when, to whom they were talking, and what decisions they made behind the scenes. What’s more, with an election approaching in November, it is critical that this information come to light in a timely manner so that when voters cast their ballots, they can be fully informed about what their government has — or has not — done to protect them.

Trump Cannot Command States to Stand Down on COVID-19

As the number of confirmed COVID-19 cases continues to climb across the United States, President Donald Trump “would love to have the country opened up and just raring to go by Easter,” which is April 12—just 18 days off. Two things stand in his way: the disease itself and federalism.

As of March 25, according to a New York Times database, “at least 59,502 people across every state, plus Washington, D.C., and three U.S. territories, have tested positive for the virus.” Using that database as it stood on March 13, a group of Columbia University researchers released several models showing that those parts of the U.S. not already marked by large clusters of cases could still “avoid the worst of the outbreak,” but only by imposing strict limitations on social contact. The researchers concluded: “Even if the country cut its rate of transmission in half—a tall order—some 650,000 people might become infected in the next two months.” Under a model produced by researchers at the Imperial College London, the pandemic could yield over two million deaths in the U.S. unless America takes measures sufficiently restrictive to “flatten the curve.”

Given these numbers, the idea of an America “open for business” in 18 days rivals the Easter bunny as a fairy tale. There simply cannot be a strong U.S. economy if workplaces are awash in the novel coronavirus and the health care sector is overrun by the spread of COVID-19.

By and large, America’s governors know this. Across the country, both Democratic and Republican governors have stepped up to the challenge with politically difficult, but socially imperative, orders to get Americans to stay at home and limit social contact. Trump cannot command a relaxation in these state precautions because it is an elementary principle of U.S. federalism that there is no freestanding federal police power. The general authority to regulate for the protection of Americans’ health, safety, and welfare belongs to state and local government, not to Washington.

Of course, no constitutional debate is more enduring in the U.S. than the scope of Congress’s discretion to use its constitutionally vested power over interstate commerce in ways that impinge on the scope of state police power. In theory, that authority would permit Congress to require, by law, that businesses affecting interstate commerce remain open or risk takeover by some national authority. It is impossible, however, to imagine any such regime being practicable. Nor is it politically plausible that Congress would ever enact such a muddleheaded scheme. In any event, the power at issue is congressional authority, not presidential power. Without a statute to enforce, the President simply has no compulsory power in the domain of public health.

Congress does have all but unlimited constitutional power to spend federal funds for the general welfare. Using that power, it has enacted a wide range of statutes authorizing federal assistance to the states to protect public health and to respond to public health emergencies. Congress may, consistent with this power, impose conditions that states and localities have to fulfill in order to qualify for assistance. Again, however, it appears politically inconceivable that Congress would condition federal public health assistance on state forbearance from taking stringent measures to control a pandemic. It is unclear what Trump meant when he said states receiving federal aid “have to treat us well also,” but again, he has no authority to impose conditions on the receipt of aid other than those authorized by Congress. There is no legal obligation of gubernatorial etiquette in the face of federal delay or incompetence.

The danger is not whether Trump has power to command governors in their exercise of state executive authority. He does not. But his misdirection about the seriousness of the pandemic or the appropriateness of relaxed vigilance could make it politically more difficult for governors to do what is necessary and lead individual Americans to be unduly complacent. Fortunately, there is heartening evidence that the partisan gap in worrying about the pandemic is narrowing. Where local leaders are slow to react, the public may actually be ahead of them. Although Trump is now enjoying something of a rally-around-the-flag uptick in his handling of the crisis, a recent poll demonstrates that Americans are giving their governors higher marks than the federal government in dealing with the crisis.

In Federalist 17, Alexander Hamilton anticipated that, within the new nation, “the people of each State would be apt to feel a stronger bias towards their local governments than towards the government of the Union.” That bias could be undermined, he thought, only if federal administration proved so far superior to that of the states. With Trump in charge of the federal response, we can only be grateful for our governors. There will be no Trumpian Easter miracle.

When Defense Production Act Delegation Fails

Of all the heartbreaking stories already emerging surrounding the coronavirus pandemic, few have been as powerful as those from Italian and Spanish doctors forced to choose which patients to allow access to scarce ventilation equipment – choices that in some cases amount to deciding who lives and who dies.  As COVID-19 cases skyrocket in the United States, a result in part of tragic delays in testing, state governors, public health officials, and countless doctors on the front lines of the illness have warned that the United States will soon be in the same position.  New York officials, dealing with one of the country’s worst outbreaks, have estimated they are likely to be short as many as 25,000 ventilators essential to treating patients in the state.

What should follow in the coming weeks is news of a government success story – of a president who successfully invoked authorities delegated to the Executive under the Defense Production Act (“DPA”), a statute on the books since the Korean War enabling the president to harness America’s vast technical and production capacity to help meet emergency or wartime demands.  Among its provisions, the DPA empowers the president to access information necessary to assess existing industry capacity to produce essential materials; instruct American industry to prioritize fulfillment of, for example, U.S. government contract orders over, for example, equally desperate orders from abroad; and enable the federal government to allocate goods produced to the areas where they are needed most when they are needed.

Deploying these authorities should be a no brainer.  Yet, like many such statutes delegating power to the Executive in the event of war or emergency, it delegates power not to any particular federal agency, but directly to the president alone, unconstrained by expert guidance or necessary processes that might otherwise produce some action.  Indeed, the DPA authorizes, but does not require, the president to act at all.  And so far, the president has balked from using any of these powers, reportedly under pressure from the Chamber of Commerce and other corporate interests who have evidently urged the White House to, in essence, let the market work it out for itself.  There is, to date, no indication this approach has worked, and multiple indications it has not.  As the New York Times reports:

“In interviews with participants in the process, from business executives to government officials, there is still widespread confusion about how much and what exactly each firm is supposed to produce. Corporate executives say they face a bewildering number of requests from dozens of nations around the world, along with governors and mayors around the country, for scarce supplies. The White House has not said who will set the priority list for deliveries. And it is not clear that any of it will arrive in time for the cities and the states that are hit the hardest, including New York.”

In short, Congress’s preferred approach to doing its business for the better part of the past century – delegating discretionary authority to some other institution to make key decisions – cannot solve the current problem.

Fortunately, the Constitution has preserved all the old-fashioned tools of Article I power: Congress can legislate directly to require all the assessments, production, and distribution this crisis demands.  Today, Monday, thus brought a hopeful sign with the announcement of two separate bills in the Senate to do just this, the bills variously requiring, for example, the identification of private sector capacity; issuance of immediate purchase orders; and direction for the distribution of these supplies to the places they are needed most. The House should move quickly to introduce analogous legislation.

But especially at a time when it is already apparent that Executive Branch agencies have been hollowed out, internal criticism of the president can result in firing or worse, and ordinary norms of presidential behavior do not apply, it is critical that any final legislation use all the tools of drafting and oversight available to make sure Congress’s directions are actually carried out.  As I recently testified before a bipartisan hearing of the House Rules Committee, Congress has a host of tools – through sound drafting, regular oversight, and robust enforcement – for accomplishing this under ordinary circumstances.  These tools have never been more vital here.

First, draft specifically.  Where past congressional emergency legislation has relied on vague terms, broad definitions, and presidential discretion – think “necessary and appropriate force” to respond to the attacks of 9/11 – this legislation must have numbers, supply specs whenever possible, and engage not the President himself but specific, expert agency heads and other officials in carrying out the necessary actions.  Second, preserve oversight.  Whether by requiring regular status updates through weekly, published reports, or direct testimony (even if in virtual form) by named public or private sector officials – any legislation should anticipate the ongoing need for Congress to watch closely that its mandates are fulfilled.  Third, provide for enforcement.  Congress can – and very often has – directed the Executive Branch to provide reports or status updates about its compliance with legislative initiatives, only to see reporting deadlines breached with little apparent consequence.  It is in this context essential to ensure Executive Branch actors have all the incentives they need to comply promptly.  Here, too, Congress can select from a range of enforcement mechanisms – from requiring particular, named officials to certify and/or report publicly about their compliance, to attaching professional or financial penalties for failures to act.

Decades of delegating to the Executive the power to hold the wheel of governance may have left Congress rusty in remembering how to take its full Article I powers out for a spin.  That is understandable.  But there has never been a more important time for Congress to relearn how to drive.

 

Georgia’s Unconstitutional Standard for Determining Intellectual Disability in Death Penalty Cases

In 1986, the state of Georgia executed Jerome Bowden, a man with a full-scale IQ of 65. While Bowden was strapped to the electric chair, he thanked the prison for taking good care of him. State officials faced widespread criticism for the execution and vowed to ensure that the state would not execute a defendant with intellectual disability again. Two years later, the state passed a law prohibiting such executions.

It’s shocking to think that since the passage of the law 32 years ago, there has never been a single finding of intellectual disability at a trial involving intentional murder in Georgia. There is a simple reason for this: Georgia is the only state in the country that requires capital defendants to prove their intellectual disability beyond a reasonable doubt.

Long after Georgia enacted its law, the U.S. Supreme Court made clear in Atkins v. Virginia that the Eighth Amendment prohibits the execution of defendants with intellectual disability. However, Georgia’s unique standard means that, notwithstanding the Court’s decision in Atkins, the state still is doing just that. This unconstitutional practice has to stop. That is why our office, the Southern Center for Human Rights, along with the Roderick & Solange MacArthur Justice Center, filed an amicus brief in Raulerson v. Warden, No. 19-941, urging the Court to invalidate Georgia’s standard. As we explained in our brief, there are three primary reasons as to why the Court should declare Georgia’s statute unconstitutional.

First, there has not been a single finding of intellectual disability at trial in a case involving intentional murder in Georgia. In the words of one Eleventh Circuit judge, Georgia’s onerous statute “demands a level of certainty that medical experts simply cannot provide.” Because of this, capital defendants in Georgia do not have a meaningful opportunity to prove that they fall within the scope of Atkins.

Second, Georgia does not impose this standard for intellectual disability in any other context. For instance, in the education context, a student can be placed into special education as long as a comprehensive evaluation indicates intellectual deficits. In the social services context, an individual is eligible for disability services if she receives a diagnosis of intellectual disability. In both instances, the evaluation conforms with accepted medical standards. Georgia imposes an unattainable standard for proving intellectual disability only in the death penalty context—when the stakes are the highest.

Finally, it is clear that Georgia is not going to amend its statute to conform with the Constitution’s demands. The Georgia Supreme Court has repeatedly upheld the statute as constitutional. And the Georgia Legislature has consistently resisted efforts to change the standard, including as recently as 2018. Legislators have recognized that Georgia is an outlier, but nothing will change unless the Supreme Court intervenes.

The Court has warned that, if states are permitted “to define intellectual disability as they wished, the Court’s decision in Atkins could become a nullity, and the Eighth Amendment’s protection of human dignity would not become a reality.” Georgia has confirmed the Court’s fear. Warren Hill could not prove his disability, even though every expert agreed that he was intellectually disabled. Hill was executed. Willie Palmer could not prove his disability, even though he struggled to put his shoes on the correct feet. Palmer remains on death row. And Billy Raulerson also could not prove his disability, even though testimony at his trial indicated that he functions at the level of a 12-year-old. Raulerson is now at risk of execution.

The state of Georgia has executed an individual with intellectual disability, and it will do so again so long as it employs its unconstitutional standard. The Court should grant certiorari in Raulerson and bring Georgia into compliance with the Constitution.

 

Protecting Civil Liberties During a Public Health Crisis

This column originally appeared on the Electronic Frontier Foundation website.

Across the world, public health authorities are working to contain the spread of COVID-19 (Coronavirus Disease 2019). In pursuit of this urgent and necessary task, many government agencies are collecting and analyzing personal information about large numbers of identifiable people, including their health, travel, and personal relationships. As our society struggles with how best to minimize the spread of this disease, we must carefully consider the way that “big data” containment tools impact our digital liberties.

Special efforts by public health agencies to combat the spread of COVID-19 are warranted. In the digital world as in the physical world, public policy must reflect a balance between collective good and civil liberties in order to protect the health and safety of our society from communicable disease outbreaks. It is important, however, that any extraordinary measures used to manage a specific crisis must not become permanent fixtures in the landscape of government intrusions into daily life. There is historical precedent for life-saving programs such as these, and their intrusions on digital liberties, to outlive their urgency.

Thus, any data collection and digital monitoring of potential carriers of COVID-19 should take into consideration and commit to these principles:

  • Privacy intrusions must be necessary and proportionate. A program that collects, en masse, identifiable information about people must be scientifically justified and deemed necessary by public health experts for the purpose of containment. And that data processing must be proportionate to the need. For example, maintenance of 10 years of travel history of all people would not be proportionate to the need to contain a disease like COVID-19, which has a two-week incubation period.
  • Data collection based on science, not bias. Given the global scope of communicable diseases, there is historical precedent for improper government containment efforts driven by bias based on nationality, ethnicity, religion, and race—rather than facts about a particular individual’s actual likelihood of contracting the virus, such as their travel history or contact with potentially infected people. Today, we must ensure that any automated data systems used to contain COVID-19 do not erroneously identify members of specific demographic groups as particularly susceptible to infection.
  • Expiration. As in other major emergencies in the past, there is a hazard that the data surveillance infrastructure we build to contain COVID-19 may long outlive the crisis it was intended to address. The government and its corporate cooperators must roll back any invasive programs created in the name of public health after crisis has been contained.
  • Transparency. Any government use of "big data" to track virus spread must be clearly and quickly explained to the public. This includes publication of detailed information about the information being gathered, the retention period for the information, the tools used to process that information, the ways these tools guide public health decisions, and whether these tools have had any positive or negative outcomes.
  • Due Process. If the government seeks to limit a person’s rights based on this "big data" surveillance (for example, to quarantine them based on the system’s conclusions about their relationships or travel), then the person must have the opportunity to timely and fairly challenge these conclusions and limits.

In light of these principles, we are troubled by reports about how the Chinese government is using “big data” to contain COVID-19. Reportedly, that government is requiring its citizens to download software to their phones, and then use their phones to scan QR codes when they arrive at checkpoints for entry to public spaces (e.g., trains and malls). This software assigns each citizen a color code (i.e., green, yellow, or red) to indicate their health status. The software dictates whether each citizen should be quarantined, and whether they may enter public spaces. The software also sends information to the local police. The Chinese government says it is only using this system to identify people who may be infected. Citizens report they have been quarantined because this tracking system identified contact between them and an infected person.

We also have questions about a new rule from the U.S. Centers for Disease Control and Prevention (CDC). It requires airline companies to collect the name and contact information of all passengers and crew arriving in the United States on international flights, and to transmit this information to the CDC within 24 hours of an order to do so. The CDC intends to use this information for “contact tracing,” that is, to rapidly identify people who were in contact with an infected person, so those contacted people can be timely notified, tested, and possibly quarantined. Such data processing may be necessary and proportionate to the public health need.

But we must not lose sight of the great sensitivity of the personal data at issue–this data paints a clear picture of the travel, health, and personal relationships of airline passengers. EFF would like the CDC to explain what it will do to ensure this sensitive data is used only to contain communicable diseases. For example, what measures will ensure this data is purged when no longer helpful to contact tracing? Also, what safeguards will ensure this newly collected data is not used by police for ordinary crime fighting, or by ICE for immigration enforcement?

EFF has long advocated against digital surveillance by government and corporations of our movements, health, and personal relationships, and against big data systems that can turn our lives into open books. Such data processing often invades our privacy, deters our free speech and association, and disparately burdens racial minorities. Some use of big data may now be warranted as public health officials work to contain COVID-19. But it must be medically necessary, as determined by public health experts; any new processing of personal data must be proportionate to the actual need; people must not be scrutinized because of their nationality or other demographic factors; and any new government powers must expire when the disease is contained.