ACLU Letter to the House Judiciary Committee Regarding Emergency Judicial Powers In H.R. 3729

Hon. F. James Sensenbrenner
Chairman
House Judiciary Committee
2138 Rayburn Office Bldg.
Washington, DC 20515

Hon. John Conyers, Jr. 
Ranking Member
House Judiciary Committee
2142 Rayburn Office Bldg.
Washington, DC 20515

Re: H.R. 3729, emergency authority to delay or toll judicial proceedings

Dear Chairman Sensenbrenner and Ranking Member Conyers:

On behalf of the American Civil Liberties Union and its close to 500,000 members, we write to ask you to consider H.R. 3729, emergency authority to delay or toll judicial proceedings, only after thorough hearings concerning the need for this legislation and its effect on constitutional rights.

We are concerned about the possible misuse of open-ended authority to deny critical constitutional rights in times of natural disaster, terrorist attack or other emergency. At the same time, we understand that inflexible application of court filing deadlines could also, in some circumstances, create unfairness or frustrate constitutional rights.

H.R. 3729 would allow the Chief Judge of a United States district court (or next most senior judge) to waive court filing deadlines in the event of a natural disaster or emergency. The legislation would apply to all court filings, ""including prearrest, post-arrest, pretrial, trial, and post-trial procedures"" in criminal cases and all aspects of civil cases.

H.R. 3729 as introduced provides extremely broad authority. A broad waiver of filing deadlines in all cases could have the effect giving the government the ability to hold people illegally during the waiver period, because the government would be excused temporarily both from prearrest procedures (such as arraignment and filing of criminal charges) and from having to file an answer to a detainee's challenge to being detained without charge. We understand H.R. 3729 as introduced will be modified explicitly to provide that the bill does not authorize the ""suspension"" of the writ of habeas corpus and to include a 14-day time limit on the waiver authority (which could be renewed).

While these modifications are welcome, many unanswered questions remain. For example, while the bill does not authorize a ""suspension"" of habeas corpus, its waiver authority would still apply to all civil and criminal cases. The bill does not clearly state whether, or under what circumstances, a waiver of a deadline for the government to file charges or respond to a habeas corpus petition would be barred because it amounts to a ""suspension."" Does the fourteen-day waiver essentially permit detainees to be held for two weeks without charge, or even longer if the waiver is renewed?

The proposed amendment does not address situations other than habeas in which time is of the essence to ensure that a remedy is available for violation of constitutional rights. For example, government officials who are being criticized for failing to deliver humanitarian aid might issue restrictions on news coverage in the disaster zone or impose censorship on news coverage. If court filing deadlines are suspended, could the government temporarily ignore a First Amendment court challenge to such restrictions or censorship?

On the other hand, inflexible application of court filing deadlines also has the potential to frustrate important constitutional rights. For example, state prisoners in all cases have to meet a one-year deadline to file a habeas corpus petition to receive federal review of their state convictions. See 28 U.S.C. § 2244(d). For the vast majority of prisoners, this is the only opportunity to have a federal court hearing on the constitutionality of their state court trials. Applying the one-year deadline to prisoners who were unable to comply as a result of a natural disaster would be a grave injustice.

We strongly urge the Judiciary Committee to delay action on H.R. 3729 until it has held thorough hearings. If hearings show that legislation is needed, it should be carefully tailored. Legislation should also include a sunset to ensure a second chance to review the issue.

Chief Justice Marshall termed it the ""very essence of civil liberty"" that the government afford a remedy for the violation of an individual's rights. Marbury v. Madison, 5 U.S. 137 (1803). Depending on the circumstances, waiving judicial filing deadlines could either frustrate or preserve an effective remedy.

We thank you for your consideration of our views.

Sincerely,

Caroline Fredrickson
Director, Washington Legislative Office

Timothy H. Edgar
National Security Policy Counsel