The American Civil Liberties Union (ACLU) is pushing back against a plan by the Department of Justice (DOJ) to charge people who intentionally spread the novel Coronavirus (COVID-19) as terrorists.

Casting the DOJ’s latest pitch as an extreme abuse of authority, the storied civil libertarian organization also criticized the potential use of terrorism charges as inimical to an effective pandemic response based on genuine data and epidemiological expertise.

“The Department of Justice should not be sending such a counterproductive and harmful message as the nation responds to this pandemic,” Hina Shamsi, director of the ACLU’s National Security Project said in a press release blasting the DOJ’s trial balloon.

“Rather than heeding public health experts’ advice to promote public trust in science and reduce prison populations, the Justice Department is threatening to use vague, overbroad, and flawed coercive powers that will make people more afraid to seek care,” she continued.

Late Tuesday, Politico reported that Deputy Attorney General Jeffrey Rosen apprised DOJ apparatchiks, law enforcement agency heads and U.S. Attorneys offices that prosecutors are likely to encounter cases of “purposeful exposure and infection of others with COVID-19.”

Rosen’s proposed solution was for DOJ to crack down on such cases by opening up the use of terrorism statutes. Per a selection of that Rosen memo:

Because Coronavirus appears to meet the statutory definition of a “biological agent”…such acts potentially could implicate the Nation’s terrorism-related statutes. Threats or attempts to use COVID-19 as a weapon against Americans will not be tolerated.

Law&Crime’s Elura Nanos explored the federal statutory background for Rosen’s somewhat controversial suggestion in a Wednesday morning companion piece here.

“Without question, use of terrorism statutes in the context of a naturally-occurring novel virus would be unprecedented,” she concluded. “But just about everything right now is unprecedented.”

And, as previously reported, New Jersey and Louisiana have already attempted to use state terrorism statutes for alleged crimes related to the Coronavirus pandemic. The former case involves a man who allegedly coughed on an employee while taunting her about having contracted the Coronavirus; the latter case concerns a more controversial exercise of speech deemed terroristic in nature.

But civil liberties advocates caution that an unprecedented pandemic landscape shouldn’t necessarily give way to executive branch power-grabs under the cover of a national crisis.

“The Justice Department has a host of broad terrorism-related powers that it has misused and abused against vulnerable communities,” Shamsi said in additional comments to Law&Crime via email. “It should not be repeating bad mistakes in a public health emergency.”

National security attorney Bradley P. Moss also expressed deep misgivings about the use of terrorism statutes as a criminal justice response to the Coronavirus problem.

“If in fact DOJ is going to try bringing such prosecutions going forward, it should be done in only the most extreme cases and only where the actions of the criminal suspect truly warrant such a controversial move,” he told Law&Crime via email. “There are more than sufficient criminal provisions available to law enforcement to punish the vast majority of individuals who might intentionally or irresponsibly spread this deadly virus without resorting to the use of terrorism provisions.”

[image via Ed Zurga/Getty Images]

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