Just as a little thought experiment, let’s look how some passages from SCOTUS nominee Elena Kagan’s successful argument in U.S. v. Comstock–in which SCOTUS just voted 7-2 to affirm the federal government’s authority to indefinitely detain sex offenders who are mentally ill–appear when we replace the term “sexually dangerous person” with “terrorist.” (See Adam B’s post on the decision for a good overview of the decision.)
KAGAN: The Federal Government has mentally ill, sexually dangerous persons [terrorists] in its custody. It knows that those persons, if released, will commit serious sexual [terrorist] offenses;
JUSTICE GINSBURG: But the likelihood is that the person will stay in Federal custody?
GENERAL KAGAN: I think that that’s fair, that the likelihood is that the person will stay in Federal custody until such time as a court finds that the reasons for that custody have lapsed.
CHIEF JUSTICE ROBERTS: Right. I understand your argument to be that this power is necessary and proper, given the fact that the person is in Federal custody for some other reason, criminal conviction [enemy combatant designation].
GENERAL KAGAN: That has been the government’s case throughout this litigation, that it is always depended on the fact of Federal custody, on the fact that this person has entered the criminal justice system [been designated an enemy combatant],
CHIEF JUSTICE ROBERTS: Well, why doesn’t the Federal Government’s authority to have custody because of the criminal justice system [enemy combatant designation] end when the criminal justice system is exhausted if he can’t be charged? In other words, when the sentence is done?
GENERAL KAGAN: Because the Federal Government has a responsibility to ensure that release of the people it has in its custody is done responsibly, and is done in such a way —