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.
