On Monday, the Supreme Court decided United States v. Comstock. In a 7-2 decision (Scalia and Thomas dissenting), the Court held that Congress has the power, under the Necessary and Proper Clause, to write legislation that would allow the federal government to detain "sexually dangerous" persons indefinitely, even after they had served out their sentence. A Salon piece discussed the likelihood that this decision be used as a precedent for the Obama administration to continue its practice of holding Guantanamo detainees indefinitely.
First, whether the administration leans on this new decision or on previous "war powers" decisions to continue its Guantanamo plans, the practice of indefinite detention seems like just the thing we were railing against during the Bush administration and exactly the kind of "change" sought during the 2008 election. Rachel Maddow lays out that contradiction quite well. Certainly, there are instances where, for one reason or another, credible evidence obtained by the government against a suspected terrorist would be inadmissible in a federal court; there are also cases where we have probably turned innocent detainees against the U.S. and fear retaliation after their release. To either of these situations, it seems there are other solutions short of holding these people forever, which stands against our sense of Rule of Law and the basic human right of habeas corpus.
However, more importantly than that is how this case may be used in contexts other than Guantanamo detainees and sex offenders. Ten years down the line, what will the administration in power feel it needs to keep the public safe from? What other class of persons will it feel obliged to continue to hold? I admit that, having not read the full opinion, there may be a narrow reading of the class Congress may legislate to keep confined. However, Justice Breyer's opinion asked that if the government is already allowed to hold a prisoner in quarantine because he has some communicable disease, "how could it not be similarly 'necessary and proper' to confine an individual whose mental illness threatens others to the same degree?"
I understand his point, broad as it may be, and can't say I fully disagree. However, I also understand Justice Thomas' point that "the Constitution does not vest in Congress the authority to protect society from every bad act that might befall it." My worry is whether this case will become a crutch leaned on by future administrations to expand power to hold whomever it may be convenient at the time to hold. With few exceptions (if any), a man who has paid his debt to society and served the time to which he was sentenced deserves the certainty that his debt is paid in full.
First, whether the administration leans on this new decision or on previous "war powers" decisions to continue its Guantanamo plans, the practice of indefinite detention seems like just the thing we were railing against during the Bush administration and exactly the kind of "change" sought during the 2008 election. Rachel Maddow lays out that contradiction quite well. Certainly, there are instances where, for one reason or another, credible evidence obtained by the government against a suspected terrorist would be inadmissible in a federal court; there are also cases where we have probably turned innocent detainees against the U.S. and fear retaliation after their release. To either of these situations, it seems there are other solutions short of holding these people forever, which stands against our sense of Rule of Law and the basic human right of habeas corpus.
However, more importantly than that is how this case may be used in contexts other than Guantanamo detainees and sex offenders. Ten years down the line, what will the administration in power feel it needs to keep the public safe from? What other class of persons will it feel obliged to continue to hold? I admit that, having not read the full opinion, there may be a narrow reading of the class Congress may legislate to keep confined. However, Justice Breyer's opinion asked that if the government is already allowed to hold a prisoner in quarantine because he has some communicable disease, "how could it not be similarly 'necessary and proper' to confine an individual whose mental illness threatens others to the same degree?"
I understand his point, broad as it may be, and can't say I fully disagree. However, I also understand Justice Thomas' point that "the Constitution does not vest in Congress the authority to protect society from every bad act that might befall it." My worry is whether this case will become a crutch leaned on by future administrations to expand power to hold whomever it may be convenient at the time to hold. With few exceptions (if any), a man who has paid his debt to society and served the time to which he was sentenced deserves the certainty that his debt is paid in full.
4 comments:
I read, but certainly did not study, the decision, so I don't claim any particular authority about it. However, it seems to me that the question that the court decided is fairly narrow; i.e. does congress have the constitutional authority to enact the civil commitment statute that the petitioners were challenging? The majority said that the "necessary and proper" clause of the constitution gives congress that authority. The dissent, taking a more limited view, said that congress does not have the authority to enact the statute because its subject matter -- civilly committing sexual predators -- is not one of the "enumerated powers" assigned by the constitution to the federal government. That same argument has been used by conservative critics to attack the legitimacy of such things as federal civil rights legislation. Nothing new there. Its just a "state's rights" argument.
I don't read the majority's decision as carte blanche approval of the indefinite commitment of sexual predators. Moreover, the statute itself apparently does not even call for that. Justice Breyer's opinion mentions that the statute requires that the government prove to a judge that the person is dangerous before he/she can be civilly committed.
Further, the person has the right to challenge the commitment at least every 6 months. In other words, the govt has to continue to prove that the person is dangerous in order to keep him/her locked up. That's really no different than a habeas corpus hearing and its no different than a civil commitment proceeding in state court.
I'm generally all for Congress taking a broader role through the Necessary and Proper Clause- I think that as long as it's done by a large group of elected representatives and not one person, there's less likelihood of it becoming dangerous. The slippery slope argument is an important one to consider simply not to go too far- not that it always gets to the point you might fear. While the government's need to prove a person's danger to society in front of a court is important, let's not forget that the court ok-ed the internment of Japanese during WWII under the guise of lawfulness.
I'm not necessarily saying this is where we're headed, nor have I studied the opinion completely. I just think it's worth considering how far the precedent might go.
I wasn't suggesting that the federal govt hasn't in the past wrongfully held or might not in the future wrongfully hold people in detention. The point that I making was that this decision by the supreme court doesn't -- so far as I read it -- even speak to that issue. Rather, it addresses the limited question of whether the federal govt can legislate in areas other than those about which the constitution gives it specific responsibility.
I share your concern about wrongful, unlimited detention. (Although as I said before, the underlying statute here seems to provide some safeguards to ensure that the govt can't just lock someone up and forget about him.) However, I don't think that this decision can properly be viewed as placing the supreme court's imprimatur on unlimited detention.
Point taken. If the point of the case is simply whether or not Congress is limited to what is written down in the Constitution, I would certainly agree with the majority. And I hope you're right that the decision can't and won't be used to excuse unlawful detentions.
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