Columns share an author’s personal perspective.
This week, Attorney General William P. Barr told Fox News’ Laura Ingraham that some of the government-imposed restrictions meant to control the spread of COVID-19 were “draconian.”
Barr acknowledged that governments, particularly state governments, have broad authority to impose restrictions on people in cases of emergency. He tempered that with the following admonition, the federal government should be “very careful to make sure that the draconian measures that are being adopted are fully justified.”
That’s a significant about-face for a guy who has argued that the sky is the limit when it comes to executive power.
In mid-March, after President Donald Trump declared a national emergency, Newsweek reported that the attorney general proposed granting himself immense, permanent powers extending far past the needs posed by a pandemic.
Barr proposed having the authority to personally ask any chief judge to hold a citizen, “whenever the district court is fully or partially closed by virtue of any natural disaster, civil disobedience, or other emergency situation.”
Barr was essentially asking to suspend habeas corpus. Such a “draconian” move has happened rarely in our nation’s history - most notably the Civil War, Reconstruction and the World War II internment of Japanese Americans.
What are Barr’s new concerns with government intrusion?
Barr said during the Fox interview he is concerned about the “tracking of people” suggested by some experts to identify those infected and to quarantine or isolate those persons.
The New York Times reported Israel’s Prime Minister Benjamin Netanyahu has authorized the country’s internal security agency to tap into a vast and previously undisclosed trove of cell phone data to retrace the movements of people who have contracted the coronavirus and identify others who should be quarantined because their paths crossed.
Alan Z. Rozenshtein, an Associate Professor of Law at the University of Minnesota Law School, wrote on the Blog Lawfare, “the longer the pandemic drags on, the more willing (and rightly so) people will be to trade in some of their privacy for the freedom to work and play.”
There is already significant support for location tracking among both policy experts and the general public.
According Rozenshtein, any disease surveillance program is likely to be evaluated under the Fourth Amendment’s “special needs doctrine.” Through the special needs doctrine courts have, at times, permitted warrantless surveillance with less than probable cause. In those instances courts have weighed if the search is aimed at something other than a traditional law enforcement purpose, is reasonable, and not impractical under the circumstances.
On one hand the attorney general is willing to let a man or woman languish in jail awaiting formal charges or trial but, on the other hand, attack the efficacy of surveilling an ill person during a national health emergency.
The World Health Organization has provided guidance for surveillance during a pandemic. There is, of course, one problem with that - the president is blaming the WHO for the pandemic and threatening to withhold the organization’s funding.
According to the WHO, the primary objective of surveillance monitoring during a pandemic is to track the course of the pandemic. Surveillance will reveal geographical spread, disease trends, intensity of transmission, impact of the pandemic on health care services and changes in the epidemiology.
Social distancing has no doubt begun to save lives in the United States. As COVID-19 projections have been adjusted downward, Barr lamented a prolonged shutdown could cost lives. He made the following dubious comment while opposing prolonging the shutdown while on Fox News - “(C)ancer researchers were probably at home now, not doing their critical work.”
There are always going to be competing interests, but drawing back on social distancing to restart the economy; kowtow to religious leaders; or win an election will never be the right thing to do.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.