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Dangers of a preventive detention law
In the case of sexually violent predators, the courts have carved out a narrow exception to this rule, and allowed detention of people who are both dangerous and suffer from a "mental illness or mental abnormality" that makes them unable to control their behavior. This second element is essential. In a 2002 case, the Supreme Court ruled that Kansas could not detain someone as a sexually violent predator, no matter how dangerous he might be, without this lack-of-control showing. This showing is necessary, the Court said, to distinguish those subject to civil commitment from those who should be handled by the criminal justice system. It is necessary to prevent the civil commitment exception from swallowing the rule that those whom the government wants to imprison must first be provided with the protections of a criminal trial.
In other words, a finding of dangerousness alone is not enough to permit indefinite detention.
There are other differences as well. Consistent with the idea that those detained are suffering from a mental illness, sexually violent predator laws generally require that suspects receive treatment for their condition, are housed in psychiatric facilities, and are otherwise treated like patients rather than prisoners. By contrast, some preventive detention proposals call for detainees to be housed in maximum-security prisons or military brigs. This starts to look a lot like punishment, not treatment.
Supporting Al Qaeda or the Taliban may make a person dangerous, but it is not a recognized mental illness. And no one contends that Al-Qaeda members are unable to control their behavior, or are most appropriately dealt with through psychiatric treatment. So proposals for a new preventive detention law for terrorist suspects simply cannot be justified by reference to the sexually violent predator system.
Human Rights Watch http://www.hrw.org/en/news/2009/01/03/dangers-preventive-detention-law
Whatever "appropriate legal regime" is worked out between Obama and Congress, let's hope we're given more than 5 minutes before the roll call vote to have a look at it and to provide our "input."
