(Update: Thanks to Ilya for his post above, and Orin for his comment below to this post. Bottom line is that Comstock does not have national security implications.)
Could I put a question to the VC staff who are following Comstock? For those of us in the national security area, the whole matter of continued detention after a sentence has been fully served is of interest because of the possible implications for national security detention. Detention at Guantanamo and elsewhere in the ‘global war on terror’ has been justified on “enemy combatant” grounds, but arguably (not according to the Obama administration, however, at least to this point) those grounds are weakening as the Supreme Court has altered the pure scheme of wartime detention to include such things as habeas and other innovations.
Numbers of commenters, trying to figure out a less ad hoc basis for detention, while still accepting that there is a justified need and basis for detention, have proposed administrative detention authority under Congressional legislation that might depend upon claims of national security and the law of self defense, but would not be grounded in armed conflict status and being declared an “enemy combatant.” Glenn Sulmasy has written a very interesting, good short book on the subject; Jack Goldsmith, Matthew Waxman, Mark Gitenstein, and Ben Wittes all discuss some form of administrative detention in Ben Wittes’ new Legislating the War on Terror; I’ve endorsed the idea several places; it’s a discussion in the air over the last couple of years. At least until the Obama administration apparently decided not to take the war on terror to Congress for a long term legislative arrangement and Congress sighed a big happy sigh of relief at not being on hook for any difficult votes.
Back at the beginning of the war on terror, post 9-11, I remarked on some panel somewhere that administrative detention had been blessed in the US under some pretty weird circumstances – specifically, the Supreme Court decision, sharply divided, endorsing administrative detention for child sexual predators even after sentence served – that is, the state-created version of what Comstock, as I understand it, is debating. On that panel, which was very early after 9-11, representatives of a couple of civil liberties/human rights groups, which had been arguing that detention of this kind had never happened before, looked surprised. Mind, I have always opposed the original Supreme Court ruling, on grounds that don’t have very much to do with national security administrative detention under civilian, rather than military, authority. But it is certainly the case that the United States has long had mechanisms for administrative civil detention for the long term.
Here’s my question to the VC Staff: Are there any implications of Comstock, in the hearings, briefs, arguments, suggesting that anyone involved is weighing this up at least partly in terms of implications for what it might mean down the road for a Congressional national security administrative detention statute or authority? I say this particularly thinking that SG Kagan has long been persuaded of national security arguments that other liberals might not be. Is it right, or too far a reach, to think that members of the Court are also thinking how this decision might affect those possibilities, to enhance or restrain, down the road? Or am I just seeing the world too much through a national security lens?