Search and Replace: Sexually Dangerous Person, Terrorist

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 —

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Revenge of Article III

We’ve talked about this in threads, but I just wanted to pull out all the bits of Anthony Kennedy’s opinion that really address separation of powers and rule of law, in addition the question of Gitmo and Habeas more directly. Kennedy bases much of his argument on separation of powers on the reminder that since Marbury v. Madison, it has been the Court’s duty–and not that of Congress or the President–to determine what the law is.

Our basic charter cannot be contracted away like this [claiming the US had no sovereignty over Gitmo because we ceded it to Cuba then leased it back]. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.” Murphy v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say “what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803).

Within that context, he describes habeas corpus as a mechanism which has been historically designed to check the power of the political branches.

These concerns have particular bearing upon the Suspension Clause question in the cases now before us, for the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain.

As such, only the Court can determine the proper boundaries of habeas corpus, not Congress or the President.

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