Keeping an Eye on the Civil Liberties Impact of Trump’s Coronavirus Response

Most of the commentary on the Trump administration’s response to the coronavirus epidemic has rightly focused on its failures to respond adequately. Even officials within that same administration have been pleading with Trump to take the epidemic more seriously and to address it more aggressively. But as the grim reality of spiking infection and death rates has become impossible to ignore, Trump has begrudgingly embraced the use of broader powers to try to “flatten the curve.” Thus, over the last few days, Trump declared a National Emergency (under the National Emergencies Act, which allows for the invocation of various powers) and a Stafford Act emergency (which allows the federal government to provide additional assistance to state and local governments), and expanded his earlier travel bans and quarantines from China and Iran to many European countries.

There are, of course, appropriate ways to use such extraordinary powers during times of crisis. But as the Trump administration pivots to more robust action (even as the president publicly considers lifting social distancing measures against the advice of medical experts and state officials), now is the time to be vigilant about another potential problem: attempts to leverage the atmosphere of crisis created by the epidemic to obtain or retain powers that unnecessarily infringe on rights and liberties. Abuses of power made in the context of a legitimate threat—particularly when that threat, like coronavirus, is new and its consequences are still playing out are more difficult to identify, and harder to push back on, than naked power grabs. Adding to this dynamic is the current atmosphere of anxiety, volatility, and uncertainty, in which people are clamoring for the government to do more. For these reasons, it is imperative to be particularly attentive in the coming weeks and months to the Trump administration’s actions and assertions of authority.

Already, President Donald Trump has been using the epidemic to try to retroactively legitimize unrelated immigration policies. The White House has elevated on its official web page an article from a conservative tabloid, crowing that “150,000 illegal immigrants from 72 nations with cases of the coronavirus have been apprehended or deemed inadmissible from entering the United States since November.” Trump has also repeatedly tried to justify the continued construction of a border wall on the basis of coronavirus, despite the assessment of his own CDC director that a border wall will do nothing to stop spread of the disease. And Trump has sought to whip up anti-Chinese sentiment by referring to the coronavirus as the “Chinese virus,” again in contravention of the advice of the CDC. This framing has undoubtedly contributed to a spate of racially motivated incidents against persons of Asian ethnicity in the United States. (While the government has aggressively stepped up prevention of immigration into the country, Immigration and Customs Enforcement has announced that it will reduce enforcement due to coronavirus.)

With little effort, it is possible to predict some of the other areas where responding to the coronavirus could provide opportunity for abuses. First to mind is the possible misuse of surveillance authorities, under a claim that they are necessary to track those who may have coronavirus and identify those with whom they may have come in contact. The Washington Post has reported that the administration is in “active talks” with tech companies about using cell phone location data to monitor the spread of coronavirus. Such measures have already been adopted in other countries grappling with the coronavirus, such as Israel, Korea, and Taiwan.

Trump administration officials claim that cell phone location data would be “aggregated” and “anonymous,” but such claims should be viewed skeptically. In December, the New York Times published an analysis of a cell phone-tracking dataset derived from over 12 million Americans. Although the data points did not come with information like names and email addresses, the reporters found that “It’s child’s play to connect real names to the dots that appear on the maps.” Much is yet to be known about exactly what type of program is being considered for the coronavirus response, but it is clear that any tracking sufficiently precise to be useful in monitoring coronavirus spread would also raise deep concerns about whether there are adequate protections for Americans’ privacy. These concerns would need to be addressed before rolling out these tools, and any such tools utilized would need to be necessary, proportionate, temporary, transparent, and accountable.

From domestic uses of the military to restrictions on gatherings in public spaces, it is not difficult to see how otherwise legitimate powers to combat the spread of coronavirus could be abused for ulterior motives. The sense of emergency surrounding the coronavirus epidemic creates fertile ground for justifying uses of authorities that infringe on civil liberties. Reports have already emerged that the Department of Justice has requested powers from Congress that would impact the availability of habeas corpus, as well as asylum claims. (Encouragingly, representatives from both sides of the aisle spoke out in opposition to this.) And some commentators have similarly called for suspension of habeas corpus. The risk of such an approach is even greater now that Trump has begun to reframe his pandemic response in military terms. Trump recently tweeted that the United States is at “war with an invisible enemy,” and proclaimed himself as “in a sense, a war-time president.”

Just as the novel coronavirus is a global problem, concerns about possible abuse of emergency powers are global as well: A group of U.N. Special Rapporteurs recently put out a statement warning that emergency measures should not be used to abuse human rights. Trump’s demonstrated authoritarian instincts—grabbing emergency powers to build a border wall Congress wouldn’t fund; attacking the free press and the judiciary; purging government workers not seen as sufficiently loyal to his personal agenda—are a sure signal that this is a particular concern with this administration.

It is right to push the government to take the threat of coronavirus seriously—it is literally a deadly serious issue, and the Trump administration’s response has been woefully insufficient. But we must resist measures that intrude on our liberties and are not narrowly tailored to address the crisis, and we must ensure a return to the status quo ante as soon as it’s safe to do so. Congress, the press, and the public must be vigilant that the administration does not try to use the epidemic as a stalking horse for authoritarian power grabs or attacks on our rights.

 

Image: President Donald Trump speaks during a briefing on the coronavirus pandemic, in the press briefing room of the White House on March 24, 2020 in Washington, DC. Photo by Drew Angerer/Getty Images

 

About the Author(s)

Andrew Boyle

Counsel in the Liberty and National Security Program at the Brennan Center for Justice; previously prosecuted senior Khmer Rouge leaders on behalf of the United Nations for war crimes, crimes against humanity, and genocide - Follow him on Twitter (@J_Andrew_Boyle).