Alleged Terrorists Aren’t the Only Ones the Gov’t Wants to Detain Indefinitely

Apparently I’m going to have to update my choice of analogies.

Back in May, on the subject of President Obama considering the revival of military commissions for Guantanamo detainees (which he has since decided to do), I wrote the following:

The argument from those who insist civilian courts can’t handle terrorism suspects is, at its root: We can’t try them because there’s a chance we’ll lose. But this is an argument that can be made about any trial. It’s a short hop skip and a jump from making this argument about terrorism prosecutions to making it about all cases involving crimes we find particularly reprehensible. After all, we could try a case against a suspected child molester, but wouldn’t our children be safer if we just locked the suspect up – you know, just to be safe?

This, it turns out, was a poorly chosen comparison – we are, in fact, doing almost just that already.  The month before I wrote those words, Supreme Court Chief Justice John Roberts granted the Obama administration’s request to block the release of up to 77 “sexually dangerous” inmates at a federal prison in North Carolina.  The Adam Walsh Child Protection and Safety Act of 2006, in the words of the Christian Science Monitor, “authorizes the attorney general to seek the court-ordered, open-ended civil commitment of any ‘sexually dangerous person’ already in US custody.”  But in January a lower court ruled that aspect of the law unconstitutional, and in April Roberts allowed the administration to keep those 77 offenders locked up while the high court considered whether to hear its appeal.

Today, the high court agreed to consider the constitutionality of such indefinite detention.  It will take up the case in its next term in October.

It should be strenuously noted that there are huge differences between this brand of indefinite detention and that proposed for Gitmo detainees.  The AG can classify an inmate sexually dangerous and un-releasable only when he’s finished a prison sentence or has been judicially declared unfit to stand trial.  The AG must then apply to a judge for an order of commitment for the inmate, which a judge must then review and rule on.  While President Obama referred, in his big national security speech, vaguely to some review mechanism for terrorism detainees not brought to trial, indefinite detention essentially operates outside judicial review — hence its indefinite nature.

However, there are obviously some major legal questions raised by the 2006 law, including one of the primary questions raised by indefinite detention of Gitmo prisoners: can the government detain people solely to prevent future crime?  In the case of the sexual offenders, many of them have at least been found guilty of a crime — which is not the case for Gitmo detainees.  But detention is about crimes they may commit if released.

It appears that many of the sex offenders detained in North Carolina may be mentally challenged — clearly a difficult issue, though one I would hope we have mechanisms for dealing with besides indefinite detention.  But the plaintiff in the case that will be decided by the high court, Graydon Early Comstock, has been held for nearly two years after completing a 3-year sentence for receiving child pornography.  I admit total ignorance of the details of the case, so I’m far from passing any judgment on it.  But on paper, the leap from “receiving child pornography” — reprehensible a crime as it is — to “too dangerous ever to be released from prison” looks like a big one.  And, of course, one doesn’t need to have any sympathy for a sex offender to be concerned about indefinite detention of people the government designates with a certain classification — be it “terrorist,” “sexually dangerous,” or the next category.

Incidentally, it will be fascinating to watch how the Supreme Court rules on this, as it would seem to put into conflict two principles the conservative majority usually value: deferring to executive power in protecting the populace, and states’ rights.  One of the primary arguments of the plaintiff is that civil commitment is traditionally the province of the states, and the detention portion of the Walsh law exceeds Congress’ s legislative authority under the necessary and proper clause.