Detention Slip

The Obama administration wants to hold terrorists. Did SCOTUS just give them a green light?

Once, when it was fashionable to worry about Congress or the president asserting limitless authority to detain people, we would have been nervous about a Supreme Court decision expanding the authority to do so. But by now we have mainly slept our way though the Obama administration’s talk of indefinite detention for Guantanamo detainees, generalized wobbliness on civilian trials for terrorists, embrace of the state secrets doctrine, and recent discussions about “modernizing” the Miranda warning, as well as a host of other Bush-lite war-on-terror powers. Is it possible that most of us haven’t noticed that the Supreme Court has just handed Congress broad authority to detain people merely because they show signs of future dangerousness?

I am talking about the 7-2 decision in Monday’s United States v. Comstock, a case that asked whether the federal government has the authority to continue to indefinitely detain a person who has served out his federal prison sentence, or who is deemed incompetent to stand trial, if the government has clear and convincing evidence that he is a “sexually dangerous” person. The high court had already granted state governments this power. But precisely because this is the traditional realm of the states, the 4th Circuit struck down the civil confinement federal statute, finding that it “granted the federal government unprecedented authority over civil commitment—an area long controlled by the states.”

But yesterday, writing for a majority that crossed ideological lines, Stephen Breyer said that the government could indeed hold such people, under the Necessary and Proper Clause of the federal Constitution. The opinion (summarized by Adam B at Daily Kos here) listed five reasons supporting congressional authority to enact such legislation. Since Congress can do things like create prisons, ensure the safety of prisoners, and deliver mental-health care to prisoners, writes Breyer, the power to hold someone even after his sentence is served is reasonably related. He reasons that if the confinement of a prisoner infected with, say, a communicable disease is “necessary and proper,” then “how could it not be similarly ‘necessary and proper’ to confine an individual whose mental illness threatens others to the same degree?” In a strong dissent, Justice Clarence Thomas said that “to be sure, protecting society from violent sexual offenders is certainly an important end. Sexual abuse is a despicable act with untold consequences for the victim personally and society generally. … But the Constitution does not vest in Congress the authority to protect society from every bad act that might befall it.”

Sharp-eyed commentators have already observed that the decision in Comstock may go a long way toward shoring up Congress’ constitutional power to enact sweeping health care reform. As David Savage noted yesterday in the Los Angeles Times, the “Supreme Court set a potential blueprint Monday for upholding the recently enacted healthcare law and its mandate that all Americans have insurance, saying Congress has a ‘broad authority’ to pass laws that are ‘rationally related’ to its constitutional aims.” Professor Randy Barnett disagrees. But the more worrisome question is whether this very expansive view of federal crime-fighting authority would carry over to terrorism suspects whom the government may want to detain without trial.

The bloggers at the Volokh Conspiracy first sounded the alarm. Even before the ruling, they questioned Solicitor General Elena Kagan’s broad federal power analysis in arguing this case and whether her arguments could have implications for national-security detentions. Orin Kerr  wrote: “Indeed, her argument struck me as sort of shockingly broad: She argued that the Constitution gives the federal government the general power ‘to run a responsible criminal justice system,’ and that anything Congress plausibly thought a part of running a ‘responsible criminal justice system’ was within the scope of federal power.” Eugene Volokh, looking closely at the decision Monday, concluded that “the brief resurrection of the enumerated powers doctrine, under which courts would strike down some Congressional actions as going beyond the constitutionally granted powers … may be largely over.”

The result in Comstock also highlights the deep differences among the four traditionally conservative justices on questions of federal power and the differences between Roberts and Alito and the conservative justices they replaced. As my friend Rodger Citron suggested after Comstock was argued, “both Roberts and Alito served in the federal government and … they may be inclined to be pragmatic with respect to the need, in limited situations, for the exercise of federal power and authority.” (Compare Roberts and Alito’s view of federal authority to that of Chief Justice William H. Rehnquist and Justice Sandra Day O’Connor).

The Economistconnected the result in Comstock to the Bush/Obama arguments about indefinitely detaining terrorists for crimes they might commit in the future: The government’s power post-Comstock is “similar to the power both the Bush and Obama administrations claim to detain ‘enemy combatants’ indefinitely because, although there is not enough evidence to convict them in a court of law, we know they will re-join al-Qaeda if we let them go.” Marcy Wheeler went further:

I’ve long said that the most likely candidates for indefinite detention as alleged terrorists are those–like Abu Zubaydah and Mohammed al-Qahtani–whose torture has made them mentally unfit for trial. And in fact, one of the five respondents here was never convicted; like I presume Abu Zubaydah and al-Qahtani might well be, he was deemed mentally unfit to stand trial. So it would not take much to see the argument affirmed today used to justify indefinite detention of Gitmo detainees. Heck, Obama’s probably already sent the draft legislation to Lindsey Graham for his approval. …

Wheeler then dryly predicts that “by the time such indefinite detentions were reviewed by SCOTUS, Elena Kagan would be one of the Justices asking the questions.”

To be sure, there are big differences between the federal statute at issue in Comstock and a future statute requiring the possible future detention of foreign terrorists. The issue in Comstock was whether the federal government should be intruding on power reserved to the states. Presumably those issues don’t come up when you’re talking about the president’s power to make war or fight back pirate attacks. Also, the sex offenders in Comstock have presumably had trials and served their time. But then, the Obama administration has already started to take the position that detainees may serve out their military sentences and still be confined.

It’s always worth remembering, in other words, that last year’s thought experiment can be tomorrow’s constitutional doctrine. (I’m looking at you, embarrassing Second Amendment.) As Kenneth Anderson argued when the court first agreed to hear Comstock,“any case dealing with forms of administrative detention is worth watching closely to see if it has collateral implications for counterterrorism detentions.” Most of the rationales endorsed by the court for holding the sex offenders in Comstock are equally compelling when applied to Khalid Sheikh Mohammed and his friends. Incurable and mentally unstable sex offenders are no more terrifying than incurable and mentally unstable jihadists.

Clarence Thomas thus became the voice of restraint when he wrote in his Comstock dissent that “[t]he fact that the federal government has the authority to imprison a person for the purpose of punishing him for a federal crime—sex-related or otherwise—does not provide the government with the additional power to exercise indefinite civil control over that person.” Locking someone up forever may solve a whole host of real-life problems. That doesn’t mean it shouldn’t give you constitutional heartburn as well.

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