Tuesday, August 12, 2008

The Civil Commitment Analogy (or Hamdan Verdict Part 2)

As promised yesterday, here is part 2 re the Hamdan verdict and sentence:

In my FindLaw column, I explain that within the civilian justice system it is possible for the government to detain a person not as a punishment for past wrongs but out of fear of future dangerousness. Within the criminal justice system, bail is sometimes denied out of fear of the defendant's future dangerousness. The Supreme Court approved that practice in United States v. Salerno over the dissenting objection that the point of bail (or denying bail) is simply to ensure the defendant's presence at trial. But in any event, pre-trial detention is relatively short. Long-term preventive detention requires civil commitment, which in turn requires proof by clear and convincing evidence that the person to be committed is both mentally ill (or suffers some form of mental impairment) and poses a danger to self or others. Crucially, civil commitment is not permanent. Someone who is locked up as mentally ill and dangerous must have that status periodically reviewed.

Needless to say, people who are civilly committed AFTER causing serious harm face serious difficulty in getting released. Few judges are willing to take the risk of releasing someone who may commit future violence. Likewise, psychiatrists are often reluctant to testify that a once-violent patient no longer poses a risk. Thus, John Hinckley, Jr. remains in civil confinement, only quite having become eligible for supervised visits with his parents a few years ago.

Would the same dynamic apply for war-on-terror detainees? Quite possibly. My column proposes that the government be required to make periodic showings that a detainee remains dangerous in order to be able to continue to hold him, but it is easy to see how judges would be reluctant to order the release of anyone once branded a dangerous terrorist.

Accordingly, my proposal can legitimately be criticized on the ground that it is too forgiving of the government. And yet, in the current political environent, the proposal would likely be dismissed as wildly civil libertarian.

Posted by Mike Dorf


Bob Moss said...

It is incredible how the courts and the legal establishment have, for the most part, acquiesced in the Bush administration’s butchering of the law. For example, Prof. Dorf writes today in his Findlaw column,

For present purposes, however, we can set aside the distinction between lawful and unlawful enemy combatants. The key point here is that an enemy combatant, even if lawful, can be detained for the duration of a war.
In addition to detaining enemy combatants, a nation at war may choose to try some number of detainees for criminal acts, typically war crimes. . . .

Dismissing the difference between lawful and unlawful combatants, combined with the expression “some number of detainees” causes the passage to have the clear import that the choice of trying enemy combatants for crimes is entirely up to the nation detaining them. This is indeed the Bush policy, as some detainees are charged with killing Americans in combat situations, and others are charged with such offenses as conspiracy.
But killing in a combat situation is not a war crime, and, under our supposed Constitution, civilian offenses such as conspiracy may not be tried by military tribunal, commission, or court martial. The only offenses for which enemy combatants may be tried are actual war crimes, such as espionage, fighting out of uniform, or deliberately killing non-combatants while in a combat situation.
To write, speak, and argue in the Bush framework, as Professor Dorf does in this column, is to be complicit in Bush’s re-writing of the law. Our Constitution cannot withstand such an assault, coming from all sides. It will only survive if a chorus of voices, from many corners of society, rises to condemn the arbitrary definitions and theories of the those who would splinter it into a thousand fragments.

Neil H. Buchanan said...

Professor Dorf's argument is precisely that the Bush administration's policies are unjustified and an assault on the Constitution. The strength of his argument is in showing that, even if we were to grant the Bush administration's own logic on any of their absurd assertions, their policies are still wrong. Accepting a premise or an assertion "for the sake of argument" is NOT a concession that Bush is right. It's a way to show just how many ways he is wrong.

Michael C. Dorf said...

I agree with Prof. Buchanan!

Or to put the point slightly differently, when I said that a government may "choose" to try some number of enemy combatants, I had in mind that they would be chosen based upon evidence of having committed war crimes, not by a roll of the dice or the whim of the captors.

Bob Moss said...

I am quite busy at the moment, so my posting was anything but a complete analysis. Further, I’ll concede that my complaint is more about form than substance. However, allow me another example:

...the analogy to conventional war is a poor fit for terrorism suspects. Suppose that a CSRT and a federal court in a habeas proceeding determine that some detainee was in fact an enemy combatant. Those determinations justify his initial detention, but in an era of a perpetual war on terror, due process should require something more for continued detention.

This passage clearly assumes, without qualifying remarks such as “according to Bush”, that Bush’s “war on terror” is a “war” under the law of nations (the definition of which has been incorporated into our Constitution by a long line of Supreme Court decisions). But it is not. A “war” must be either a formal state or war (under our Constitution, declared by Congress) or actual combat between organized armed forces. The so-called “war” that can go on forever is rather a struggle against an on-going terrorist threat. That’s different. Terrorists are not enemy combatants under the law of war. Due process thus not only prohibits indefinite detention, it requires a speedy trial in an article III court, not a CSRT, to justify their initial detention.

Qualification: Individuals detained in the actual combat in Afghanistan could have been processed by any number of procedures short of our Article III courts, had they not been brought to Guantanamo, which is under U.S. sovereignty. But once here, if they claim not to be combatants, they are entitled to Article III trials. Moreover, not everyone at Guantanamo was detained in a theater of actual combat, two infamous examples being the one(s?) arrested in the Gambia, and the group arrested in Bosnia. Under our Constitution before Bush butchered it, they need not prove at trial that they are not combatants.

Bob Moss said...

Kennedy in Boumedienne makes the same mistake:

"Because our Nation’s past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us foryears to come, the Court might not have this luxury."

Thus clearly accepting the "war on terror" as an actual war.

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