Friday, January 02, 2009


David Fathi at Human Rights Watch notes that there are those who are now suggesting that ‘preventive detention’ might be a fine option for Obama if he wants to close Guantanamo but the government doesn’t’ ‘prefer’ to bring charges against those whom it also doesn’t want to release.

This is a classic example of a very bad thing.

Not just because the whole idea of letting the government use its vast police power to simply put people away with no submission to judicial review is profoundly - how would they have put it half a century ago? – un-American; not just because it flies in the face of the Founders’ clear and abiding concern to prevent a ‘monarchical’ or ‘tyrannical’ government power (though Darth Cheney precisely and publicly thinks that ‘monarchical’ power is exactly what the Executive should have and – when push comes to arrest – already does have; not just because it continues a government engorgement of military-type powers that took a huge step into our modern American reality when Congress ‘delegated’ to the military the power to prosecute the criminal code without the safeguards specifically placed in the Constitution.

Not just because of all that.

But because We are now bethumpt by a bad and badly flawed policy allowed to take root in domestic law now migrating into foreign policy and expanding into far broader areas of fundamental American legal practice and constitutional theory. The initial ‘bad’ policy is now being touted by the ‘preventive detention’ gang as ‘proof’ that such detention is OK and that since it’s already ‘working’ in one area of American law, then it ‘ain’t but a thang’. Not hardly.

As Fathi notes, the detainers are pointing to the – here we go again – sex offender laws, where those convicted of any of a broad spectrum of ‘sex offense’ (and not at all simply against ‘the children’) can be confined once they have finished their prison sentences.

This has been effected – and upheld by the Supreme Court, thank ya vurrry mutch – through a ‘creative’ use of the long-standing practice of ‘civil commitment’: if through some sort of mental problem one constitutes a danger to oneself or others, then one can, upon judicial finding, be confined to a secure facility for treatment until one no longer constitutes such a danger.

Of course, the civil commitment laws were for persons with clearly distinguishable mental difficulties, and in the cases of accused criminal activity such commitment would function in lieu of imprisonment.

State pols, always looking for a way to look like they’re on the job, decided that it wasn’t enough to convict (even with the deeply eroded jurispraxis safeguards now in place for ‘sex offense’ trials) and imprison an individual; they wanted to come up with a way to keep that person ‘off the streets’ more or less permanently. They hit upon the ‘civil commitment’ gambit.

There are some major problems. Contrary to civil-commitment praxis, the targeted individual is not committed in lieu of imprisonment, but on top of it. That may sound suspiciously like ‘double jeopardy’, being punished twice on the basis of the same conviction, but the Supreme Court, in a marvelously ‘creative’ moment, embraced the ‘legal fiction’ that such commitment is not ‘punitive’, but merely ‘therapeutic’ – it’s not to punish the individual, but to ‘get him (almost always a ‘him’) the help he needs’. How nice. Except that since there is no ‘sex offender’ diagnosis recognized by the national psychiatric establishments, there can be – and is – no ‘therapy’ and no ‘cure’. Somehow that clear fact escaped the Court’s attention; and such an untruth, introduced into such a grave arena as the deprivation of liberty did not seem to the Robes a matter of any consequence. It gives a whole new spin to the term ‘judicial activism’ – the judicial Branch is actively embracing illusions and untruth. This is called ‘reform’ and ‘progress’.

But anyway, a majority of the Court opines, it’s all for ‘public safety’, so even if it is, well it isn’t - as it were. Even if it’s not a validly grounded policy, it’s important for ‘public safety’, sort of a domestic version of the ‘national security’ justification that has been deployed to further torture, preventive war, and the preventive detention of numerous ‘detainees’.

And like Bush v. Gore, the Court’s majority would like Us to just accept what they say and ‘get over it’ and ‘move on’. Yah. We accepted Bush, moved on, and that was 8 stupendously bad years ago. Are you feeling the ‘good idea’ in that?

But there are more impossible things to digest before your breakfast. In order to get over the stubborn fact (in Ronald Reagan’s nicely-put phrasing) that there isn’t any medical or psychiatric diagnosis for ‘sex offense’ – in other words, it doesn’t exist as a psychiatric affliction, nor – as afore-mentioned – is there a ‘therapy’ let alone a ‘cure’, the Court opined that state legislators can say what is and isn’t a psychiatric problem, regardless of what the psychiatrists say. Although it would seem that any state legislator who opened a side-business as a psychiatric therapist would still be guilty of practicing psychiatry without a license – but no matter.

Still more: a targeted individual need not display a ‘classic’ psychiatric syndrome like – say – paranoid schizophrenia or psychotic delusions or such clear and obvious insanity. No – the individual might simply ‘have’ a ‘mental abnormality’, including – say – a Personality Disorder. Now, it’s professionally understood that any given point a majority of the population can qualify for a ‘PDO” diagnosis; in almost all cases the therapy is some mixture of ‘talk therapy’ and a mild psychiatric drug, preferably more of the former than the latter.

The chances of anybody, especially after a stint – perhaps of many years – in a state prison, having a bit of a PDO, even if they didn’t have one going into the institution, are pretty good. And if one isn’t of a criminal disposition to begin with, and doesn’t yield himself to the temptation during his sojurn in that netherworld, then the chances are even better that he’s going to pay for such integrity with a bit of personality deformity simply from the sustained stress of not allowing himself to sink into the morass of dysfunction that constitutes ‘normal’ life in the prison setting. Especially if one is labeled, as is de rigeur in these matters, as a ‘sex offender’.

So much the easier will be the task of civilly confining the gentleman when and if he survives his imprisonment. Charming.

Thus We come to the ‘preventive’ part: it’s all OK because the state is simply trying to ‘prevent’ sex-offenders from committing any more ‘sex offenses’. In other words, although there is no professionally acknowledged psychiatric disease, and although the individual has committed no new offenses (kindly do not imagine that there is no opportunity to commit ‘sex offenses’ in the prison setting), the state – saith the Court – is justified in ‘preventing’ any further offenses that the individual may commit.

Nor does a majority of the Court consider it relevant that the government’s own figures indicate that ‘sex offenders’ have one of the lowest recidivism rates among all convicts.

It would appear that having ‘created’ the ‘monster’ called the ‘sex offender’ (and recall that this category is primarily composed of individuals who have had nothing to do with ‘children’) the state pols now can’t let the so-called ‘monsters’ back out into society, to walk free in liberty. It’s an interesting question whether the pols themselves understand that they have painted themselves into a dangerous corner or whether it has occurred to them that they have created a ‘class’ of ‘evil-doers’ who can serve state purposes as well as the ‘Islamo-fascists’ serve the purposes of the national legislature and the national Executive. In either case, the pols have got themselves what Pentagon-types refer to with no small admiration as a ‘self-licking ice cream cone’ – it continually feeds upon itself and will keep on doing so, being constantly (and magically) replenished by the fears of the populace, stoked by the original ‘monsterizing’ of the original offender. Neat.

So We are not out of line by wondering if this whole thing is really a good idea; if it isn’t rather a really bad idea that has opened very crucial holes in the protective watertight walls that keep the Ship of the Republic afloat.

Which brings Us back to Mr. Fathi’s observations, since supporters of the national government’s ‘preventive detention’ plan are now pointing to the domestic sex-offender policy to justify what they want to do with all of the souls currently caged in the service of the Global War On Terror (or whatever the Beltway is calling it today). So the existence of a bad policy is now being used as a justification for the deployment of that policy in yet another arena of national concern. Since Ford made the Edsel and the things are on the road, now the Pentagon wants to make a military version of it – that sort of thing.

You could be forgiven for imagining that when this new domestic military command is finally ready for some action, the public will be told that the troops are being sent forth to assist the police in capturing the hordes of ‘sex offenders’ who are on the loose. And for imagining that far too many folks will simply say ‘Oh, well, that’s OK then’ and turn back to more pressing concerns (of which We have more than a few nowadays). Thus with an ‘OK then’ will the Republic sink.

And We will come more and more to resemble the German citizenry in ’45: can’t think how it all happened, thought it was a really good thing for the country, seemed the thing to do at the time, can’t imagine how it all went so wrong, just want to forget it. But History has a way of not letting folks ‘forget’, if by ‘forgetting’ you mean ‘walk away from the consequences’. History has its own forms of ‘backlash’, called ‘blowback’ in military circles. In Our case, the sustained breaching of Our fundamental Constitutional praxis, by a citizenry that has forgotten what it means to be The People, will result in the loss of the Constitutional ethos itself. And like MacArthur’s ‘old soldier’, it will not do Us the service of collapsing spectacularly but will rather ‘just fade away’, starved of vital support by the ‘forgetfulness’ of too many who just went with the flow and told themselves it was the right thing to do.

Like the classic emergency-room ‘train-wreck’, Our Constitutional ethos is now suffering from bad ideas that are feeding upon each other, metastasizing by using each other as ‘proof’ that ‘one more’ expansion won’t ‘hurt’ and will actually be a good thing. When you get this sort of synergy in a patient with serious injuries, then it’s time to call the chaplain or cut to a commercial – because what follows won’t be pretty for home-viewing. Except for those who are fascinated by watching somebody else die.

But what’s dying here is no ‘stranger’. It’s Our own American way of ordering and deploying governmental authority. Which is to say: carefully, and with a whole lotta serious thought.

Governments are potentially dangerous things, even when they mean well, let alone when they have – like a pit bull – gone a bit off. And un-Truth is a proven enemy of all that is best in humankind.

Put ‘government’ and ‘un-Truth’ together, take them off the leash of The People’s careful , thoughtful, and sustained scrutiny, and that’s a recipe for lethal ‘mischief’, fatal to a republic, and certainly to this Republic.

I’ve mentioned it before but I’ll say it again: the 20th century saw the West wrestle with the huge challenges of controlling industrial centralization. In this country, Teddy Roosevelt joined with the Progressives in expanding the role of government to counter the huge new industrial and corporate combinations. That alone meant that – since the government was getting wayyyyy bigger and more powerful – then The People had to become more and not less capable of grounding the great Ferris-wheel of Constitutional government.

But at just that moment the Progressives slid into a form of the old American fear that ‘people’ couldn’t be trusted to be ‘The People’ and actually needed to be ridden-herd-upon by those who knew what had to be done. The late 18th century gentlefolk who wanted to keep actual power in the hands of those who were landed and thus responsible to run the affairs of the Republic, were succeeded at the beginning of the 20th by the Progressives, who felt that it was their patriotic mission civilisatrice to raise up and educate the wracked individual souls of the urban masses. But when Wilson and his war came along, this expanded into a Progressive urge to administer the government as a scientifically educated, knowledge elite, in a far more potent replay of the late-18th century landed gentry.

And then came the New Deal, and then the postwar Cold War ‘National Security State’, where the ‘Progressive’ urge to shepherd the great unwashed masses blended without too much trouble into the National Security State’s elites who would instill a useful ‘fear’ into the population and captain the Ship of the Republic into the deep, heavy, ambiguous seas of world-power.

If We consider the vanguard elites of the assorted Advocacies and Identities of the late-Sixties and early-Seventies as blending the excited but optimistic perturbations of the Progressive elites with the revolutionary-tinged, youthfully ruthless enthusiasms of ‘we are the only ones who get it’ cadres, then it’s not so hard to see that the role of The People in this Republic has been under serious if not clearly perceived assault for a century. The recent and reprehensible Unitary Executive, while it has furthered the damage to the role of The People, was enabled by a long process of the disempowerment of The People.

Somehow, and time’s running out, We have to figure out a way to run a complex nation without extinguishing the utterly vital role of The People. So far neither the historical Progressives, nor the assorted ‘elites’ of the New Deal and then the National Security State, nor the ‘Conservatives’ (really now Nationalist-Rightists), nor the congeries of assorted Identity-Advocacy ‘elites’ who have recently re-named themselves Progressive since they have utterly bankrupted the term ‘liberal’, have gotten this task right.

Mr. Obama faces a task greater than Lincoln, and yet it’s very much similar in a way to the Great Challenge that abides always at the heart of the American Dream: to trust that ‘people’ can also constitute The People.

And if he’s going to achieve that, he’s going to need the support of a whole lotta ‘people’ who must demonstrate, individually and communally, that they can indeed be The People, and insist upon exercising that profound Calling.

Embracing ‘preventive detention’ is not going to help matters at all.


The Supreme Court case to start with is 'Kansas v. Hendricks'.

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