Sex Offenders, Unlawful Combatants, and Preventive Detention
52 Pages Posted: 4 Jun 2005 Last revised: 16 Jun 2008
The paper is about preventive detention - detaining people on grounds of dangerousness alone. I want to argue in this paper that unless the detainee is insane or unable to control her behavior, the threat of punishment should not be abandoned as a device for controlling behavior in favor of indefinite preventive detention. In particular I argue that this is even true in the case of terrorists and enemy combatants. I then argue that in spite of a series of recent cases expanding the right of legislatures to authorize preventive detention, it is still consistent with our jurisprudence to draw the line where I am suggesting.
The recent Hamdi case really didn't address this point. Hamdi said (1) that Congress had authorized detention of enemy combatants for the duration of the war in Afghanistan, but not for the duration of the war on terror; and (2) that Hamdi was entitled to a (very minimal) hearing to allow him to rebut the charge that he was in fact an enemy combatant. If he failed to rebut it, then the military could continue to detain him for the remainder of the war. The administration, of course, was arguing that it should be left entirely in their hands to determine whether someone was an enemy combatant, and when would be a propitious time to release or try them, if ever. In other words, indefinite detention. The first rationale for the detention, one accepted by all courts, was to keep them from returning to enemy lines (on the administration's account, that would be any terrorist group anywhere in the world). The second, treated with more suspicion, was for interrogation. In the administration's view, whether someone should be given a trial (like Lindh) or detained (like Hamdi and Padilla) depended on how useful their information was to the government.
So the Court's ruling limited them in two ways: an immediate minimal hearing; detention without trial for the remainder of the actual fighting in Afghanistan only.
What the Court did not address, because it did not have to, was the constitutional question whether Congress COULD authorize indefinite detention if it had wanted to. That's the question I focus on here.
In the introduction to the paper I say pretty much what I've just said in these paragraphs.
In Part I, I review the series of cases starting with Salerno that begin to expand the legislature's right to detain for the purpose of preventive future crimes. My question is, has the Supreme Court really said that legislatures have the right to authorize indefinite detention? Salerno was about pretrial detention. Traditionally, and still in some states, bail was denied only to insure the integrity of the criminal process; the Federal Bail Reform Act permitted denial of bail to prevent future crimes. It was controversial for that reason, and several district courts and one circuit court struck it down. It was upheld in the Supreme Court largely on the ground that it was not punishment and therefore not punishment without conviction. It was only regulation - regulation of dangerous activity.
The other cases, more briefly: Foucha seemed a step back; it said that someone who was NGRI, but had recovered his sanity, had to be released from commitment; this would have been no big surprise except that after Salerno the Court could have called it regulation and approved the continued detention (which would have been indefinite detention). Hendricks went the other way again, approving indefinite detention for sex predators, after they have served their penal sentences. Zadvydas went back in the direction of Foucha, declaring that an undesirable and deportable alien could not be held indefinitely just because the INS could not find a country to deport him to; no indefinite detention. However the Court did note that it was an open question whether indefinite detention might be OK for terrorists. Crane revisited the sex predator question and said that although indefinite detention was OK there, it was only OK if the detainee was unable to control his behavior. Finally Hamdi, which I have already discussed. (The district court in the related Padilla case was the only court to discuss the question I am interested in, and relying on the line of cases I have just laid out determined that there was no per se ban on indefinite detention of enemy combatants.)
I then in Part II try to come to some conclusion about what the right thing to do would be, independently of constitutional considerations. I begin with a theory of preventive detention which argues that inability to control is an incoherent notion, and that sex predators can respond to punishment and should be punished only and not detained. I try to show that these arguments don't work. I then turn to an alternative theory, which is that mere undeterrability is the criterion, and that not only should sex predators be detained, but those who are sane and in control but so committed to a cause that they do not fear death should also be detained. Terrorists are the obvious cases; the suicide bomber is the paradigm. I try to show that these arguments also don't work, and that this theory has unpleasant consequences. In the end I propose drawing the line at those who cannot conform to the law, including those not in control of their behavior.
In Part III I argue that that thesis - which would block the indefinite detention of terrorists and enemy combatants, should Congress in a mood of fervent patriotism decide to go that way - is consistent with Supreme Court jurisprudence. I go back through the cases and show that given what the Court has said so far, it is still open to the Court to find that that authority is just not in the Constitution. (Congress can suspend the writ of habeas corpus, but for what I consider a well-defined period, not at the discretion of the administration. The more important point is that the existence of that clause in the Constitution supports the view that Congress cannot otherwise deny someone the right to a criminal trial.)
Keywords: sex offenses, unlawful combatants, detention
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