COMSTOCK: THE ORAL ARGUMENTS

I had Posted in November about the Amicus Brief by the Cato Institute et al in this important case.

Oral arguments in the case were held before the Supreme Court a couple of weeks ago. The transcript is here.

What I want to do here is to follow the actual course of the arguments (by the government and by the ‘defense’ attorney) and the various comments and questions put to each of them by the various Justices and the Chief Justice.

I’m doing this because it gives you not only the content of the discussions but a sense of the flow of arguments. And perhaps you might notice how even at this level the human players are not always able to keep their minds focused on the key matter or even formulate a coherent and relevant observation – but that’s human nature for you. Which was part of the reason why the Framers didn’t want to give a whole lot of power to government at any level, but especially at the Federal level: too much power to wield and not enough intensity and integrity of mature focus … But that was then. Let me not digress.

So a couple of housekeeping points before I begin. A) the numbering will be twofold: the page number and the line number (each line is numbered in the transcript) – thus 22/4 means Page 22, Line 4 or 22/4-10 means Page 22, Lines 4 through 10; and 3/22-4/12 means Page 3, Line 22 through Page 4, Line 12. . And B) so you don’t have to remember names, I’m going to put down the speaker as “Gov” for the Solicitor General (Elena Kagan) and “Def” for Attorney DuBois, speaking for the defendants/respondents; and for the Justice who is speaking I will put “J.” followed by the Justice’s last name: thus “J.Scalia” would be Justice Scalia. And C) when I quote the exact words I will use quotes; otherwise I will paraphrase what the speaker is saying so as to save time and not reproduce the whole document in the Post.

The case, as you may recall, revolves around the government’s assertion that under AWA Section 4248 it has a “responsibility” (even if not clearly the Constitutional authority, power, and right) to civilly confine after the completion of their Federal sentence sex-offenders who are (vaguely) considered by the Feds to be too ‘mentally ill’ to release into society, since so often the States don’t want to take up the burden and such a releasee will “slip through the cracks”.

You can see how much devilry has taken up residence in that web of assertions, implications and half-truths. And I think you will be impressed by the way that (alas, just a few of) the Justices refuse to be taken in.

3/11-4/2: Gov claims that government has this power through Article I (Congressional authority) as exemplified in a 1940s law Congress passed, enabling the Federal prisons to continue to incarcerate an inmate who had gone insane while in government custody, until such time as the inmate had recovered.

Note first that both Congress and the Executive have burned together now into a superfire of Federal Authority: this isn’t some President-vs-Congress type of struggle: this is both Branches seeking to assert increasing power over society and the Citizenry (even if, ostensibly, in order to ‘protect’ that Citizenry).

Second, keep an eye on that 1940s law (called here “Section 4246”) since much hinges on the difference between 1) going-insane while you are in custody and 2) proving you were already insane by virtue of the crime you committed in the first place (as the government asserts about sex-offenders).

Gov piously observes that “it would be dangerous to turn them loose upon society where no State will assume responsibility for their custody” (3/24-4/2). But a State may refuse to simply take a Federal releasee and confine him for the simple reason that, though a sex offender, he is not insane and it would be unconstitutional to simply scoop him up for ‘the public good and convenience’. The Feds’ solution is to claim that they have the right to keep sex-offender inmates even after the sentence is finished, as a public service, since the Feds have a ‘responsibility’ to ‘release inmates responsibly’ (about which more later).

Gov continues (4/5-12) that the Feds now face “a similar problem”: “The Federal Government has mentally ill, sexually dangerous persons in its custody. It knows that those persons, if released, will commit serious sexual offenses; and it knows too that States are often not in a position to deal with such dangers, not in a position to take custody and care and responsibility for those persons upon release from Federal prison”.

Well, there’s no obvious connection between mental-illness and sexual-dangerousness. And there is no way that anybody – including the government (can you say Iraq War and Deregulated Financial Sector?) can “know” the future, especially the actions of an individual person. And then you get this sly gambit where the Feds want to make it sound as if the poor States are just too busy, poor, or distracted to keep up with this oh-so-important problem … whereas it’s easily possible that a State – which under the Xth Amendment actually has the authority and power in this matter – simply doesn’t want to play this rather dirty and unconstitutional game that the Feds have set up – which appears fine with the Feds because what they really want is all on their own to confine sex-offenders indefinitely.

Worse, at 4/13-16, the Feds want to make this seem it ain’t but a thang: “This is essentially a transitional problem that the Court was -- that the Congress was dealing with, how to manage the transition from Federal custody to State superintendence and responsibility”. This is a sleazy bit of frakkery: this is not a ‘transition’ problem because the Feds precisely don’t intend for there to be any transition at all; just a room change from the ‘prison’ ward to the ‘incurably dangerous’ ward, where the sentence – you may rely on it – will be for all practical purposes Permanent.

And at 5/21, under questioning from J. Kennedy, Gov admits as much: it is “not the usual course of events” that when the government asks the State to put this guy into mental-custody that the State agrees. So the Feds know that if they get this power then the States will offer little interference, especially since the Feds have now frakked up the economy to the point where the States themselves are virtually bankrupt.

Then, marvelously, J.Scalia (of whom I am no great fan), asks the Huge Question: “What -- what -- what power conferred upon the Federal Government by the Constitution permits the Federal Government to assure that sexual predators are not at large?” (6/17-20) [italics mine]

HERE IT IS. The question that has been glaring in the lurid mania-light for 20 years, waiting to be noticed and answered – exactly what the Mania could never face up to and did not dare allow to come into public discussion: where does it say in the Constitution that the Feds have the power and responsibility to keep the world – or the country – safe from sex-offenders?*

Gov responds slyly: “I think the power, Justice Scalia, is the power to run a responsible criminal justice system, to run a criminal justice system that does not itself endanger the public”. (6/21-24) In other words, if a person is convicted, serves his sentence, and is ready for release, then the government would be “endangering the public” by doing what is Constitutionally required.


Or to put it more succinctly: the government is saying here that to act Constitutionally will endanger the public – and then, drawing itself up in the robes of Sensitive Righteousness, the government, with Eddy Haskell levels of smarm, asserts that it is not willing to endanger the public (Iraq War? Economic collapse?)

You can see here the clear outline of what I have often said: from the very outset and in the very foundations of the past decades’ Feminist-from-the-Left and Law-and-Order-from-the-Right stances has been the lethal wraith of anti-Constitutionality: that both the Left and the Right were demanding – knowingly or otherwise – that the government sidestep the Constitution (wasn’t it “quaint” anyway?) in order to meet their demands for Law and Order, Protection and Safety.

C.J.Roberts quickly inquires if Gov is saying that the government, including Congress, is saying that it does not have the power to simply pass a law saying that sex offenders are to be put into mental hospitals until they can be cured (6/25-7/7).

Slyly, Gov answers the particular situation without admitting that Congress (now and forever) doesn’t have the Constitutional power: all these cases involve incarcerated persons already convicted of a crime and in custody (7/14/24).

Roberts closes in: “Well, why doesn't the Federal Government's authority to have custody because of the criminal justice system end when the criminal justice system is exhausted? In other words, when the sentence is done?” (7/25-8/4) In other words, if the government’s only authority stems from the fact that the person is convicted and imprisoned until completion of sentence, then why doesn’t the government’s power end when the sentence ends – and that’s that?

(I hope you’re getting a sense of the real drama – even excitement – in the flow of these vital ideas.)

Gov has to fall back on the pious bit: “Because the Federal Government has a responsibility to ensure that release of the people it has in its custody is done responsibly” (8/5-8) But of course, ‘responsible release’ means NO-RELEASE AT ALL and possibly EVER (since A) there is no diagnosis for ‘sex offense’ and therefore no cure and B) the government shrinks get to say when you’re cured, and they work for … you see the problem here).

J.Scalia isn’t taking his teeth out of Gov’s leg: “But you said no. I mean, there is no constitutional power on the part of the Federal Government to protect society from sexual predators. And, you know, once the Federal custody is at an end, it seems to me that's the only power you could be relying upon.” (8/9-14) [italics mine] And I would urge you, for your own edification and peace of mind, to roll those words of Scalia around in your mind for a bit, like tasting a fine wine. Do you see now what is at stake for the entire country and for the Constitutional ethos itself in this sex-offense mania? Even Scalia admits it.

Gov again falls back on sleazy wording: “I think that the power to run a responsible criminal justice system extends to the way in which the Federal Government releases these prisoners.” (8/15-18) BUT OF COURSE the ‘responsible release’ – when you’re the government and dealing with insane sex offenders – is NOT TO RELEASE THEM AT ALL. And you think we are not all sitting at the Mad Hatter’s Tea Party between the Easter Bunny and a delegation of tooth fairies? This is what the country has come to, and in matters so vital that the future of the Constitutional ethos itself is in danger.

J.Kennedy moves in quickly: “Could the Federal Government order commitment of anyone who's been in Federal custody over the last 10 years?” (8/19-21). In other words, does Gov think that the government can now round up and lock up in a mental institution any current or former (at least for the last 10 years) Federal prisoner?

A neat question. And Kennedy doesn’t limit it to sex-offenders, either. This should be an open and shut answer.

But it isn’t.

Gov replies: “Justice Kennedy, I think that that would be a much harder case.” (8/22-23) In other words, as to whether the government – through Executive or Congressional authority – has the power to simply round up former convicts and put them in mental hospitals, the Solicitor General’s answer is: Gee, that’s a hard question. I’d sorta been expecting a ringing NO, NEVER, NO WAY, NOT ON MY WATCH kind of thing. But protecting the Constitution is precisely not what government attorneys – in either Democratic or Republican, Left or Right administrations – are hired to do in the Beltway. Do you see where things have gone in the past couple-three decades in the Beltway?

But then Gov seems to realize what she’s just said, and tries to recover: “And I would say that that would be a different case and that the Federal Government would not have the power to commit a person who is -- has been released from prison and whose period of supervised release is also completed. At that point the release has been -- the transfer to State responsibility and State control has occurred, and the Federal Government would have no appropriate role.” (9/4-12) In other words, well, if they’re already out then, OK, the Feds have “no appropriate role”. Nice.

J.Kennedy leads her gently along: “So that must be because there is a lack of Federal power.” (9/13-14).

She appreciates the help: “Yes, I think that that's correct, that at that point the State police power over a person has been fully reestablished.” (9/15-17).

But immediately, J.Scalia is back with his teeth hanging out: “But it's fully reestablished once he walks out of Federal prison, at least if he walks out of Federal prison into a State”. (9/18-20) In other words, then the Federal power ends with the sentence and the Feds then can’t simply scoop him up and put him in a nuthouse. From the moment of sentence-completion, it’s between the now ex-con and the State, not the Feds.

Gov sees the abyss opening before her eyes. “I think that that's not right, Justice Scalia. I think that there is a transition period, and what this statute is designed to do is to deal with that transition period and to make sure that sexually dangerous, mentally ill people don't fall through the cracks between Federal custody and the reestablishment of State control” (9/21-10/2). In other words, she has just invented a “transition” moment – which seems to me sort of like a quark or a muon or a lepton, something that’s ‘there in reality’ but too small for anybody to really see (like angels and demons?).

There is this new ‘transition’ moment when for a split fraction of Time you have finished your sentence and are Constitutionally free, but you haven’t actually gotten out of the government’s custody. Now in the old days, if the government kept you a moment longer than necessary to let you put your civilian clothes on and walk to the front gate, then it was kidnapping you.

But not in the Regulatory-Preventive, Safety and Protection Uber Alles America. Now there is this ‘moment’ – similar in Space and Time to that famous point where angels could dance on the head of a pin – when the government has no Constitutional authority or power over you, but still has (or needs to have) a ‘duty’ to make sure you are ‘responsibly’ released – which, of course, equals not-being-released-at-all.

And of course, Gov makes the mania-connection between ‘sexually dangerous’ and ‘mentally ill’ (more on that later). So if you’re both, then a little thing like pooh-poohing the Constitution isn’t so big a thing, is it, dearie? I mean – safety is soooo important in Our New Order, ja?

So government – with the help of the relevant advocacies, ideologues, and cottage industries battening on the SO mania – has invented a ‘moment’ in SpaceTime precisely to contain the site where and when the evil scam of “falling through the cracks” is perpetrated on the unsuspecting, helpless, terrified Citizenry by hordes of incorrigible, sex-crazed sex-offense monsters.

Ladies and Gentlemen, you are no longer in Constitutional Time; you are now in the Twilight Zone. But beware: once you are out of Constitutional Time you are more likely to run into Tyranny Time, which has a lot more razor-sharp teeth than the looney fauna at the Mad Hatter’s Tea Party.

Well, says J.Scalia, they aren’t falling through the cracks because before the Feds release such a person they can notify the State that “we are going to release a prisoner; we think he's sexually dangerous; you should take some action to be sure that he doesn't harm society. Because that's a State police function, it's none of our business”. (10/5-9)

Gov is ready for that: “I think Congress could reasonably find that that is insufficient. Congress could reasonably find that the State -- that the relationship between the State and the individual has been sufficiently disrupted as a result of what is in many of these cases an extended period of Federal custody, that it's not so easy to establish, reestablishment it all at once”. (10/10-17)

In other words, Congress doesn’t trust the States to do what the Beltway wants done with sex-offenders. But it doesn’t dare say that, so it throws up blah-blah-blah that sounds nice. Listen.

Gov is saying that somehow, mystically, the “relationship” between the State and the individual convict has been “sufficiently disrupted” by being in Federal prison that the State might not be able to quickly scoop this guy up (or may not want to). So the Feds will be glad to help and set up their own camps – errrr – hospitals. And someday if and when there’s a diagnosis, and then some further day if and when there’s a cure, and some further further day if and when this guy gets well, and some much further day if and when the Feds’ shrinks get around to saying that he’s well … on that fine day … the hearse will take the guy away with a Federal Certified Cured tag tied to the casket handles. This is treachery on a scale that will cry out to heaven.

Worse, this is a Federal bribe to the States – a seduction as skillful and treacherous as any perpetrated by a monster-stranger-sex-offender on any child. In effect the Feds are offering the States this deal: you don’t want to get involved in this sex offender mess any longer and you’re broke anyway, but you have the Xth Amendment authority in the matter – so the deal we’re offering is that you let us usurp your Xth Amendment power in this matter and we take these bums off the street for good. And leave it to us: we’ll come up with some excuse why this is all Constitutional. Whaddaya say?

This is what’s going on here.

J.Sotomayor observes that what Gov seems to be saying is that the Feds are claiming that “merely because of their -- their time in control of the individual, has an unlimited constitutional power to then civilly commit this dangerous person”. (10/20-11/3)

It DOES seem to be what the government is saying, doesn’t it?

Gov is quick to pooh-pooh that stick of dynamite: “I think what would prevent that, Justice Sotomayor, is the Due Process Clause. It is obviously the case that there are other constraints on governmental action than Article I”. (11/4-7) Yah. In mania law, there’s no such thing as genuine Due Process when the government is not only running the system but holding you, and has tagged you not only as an incorrigible criminal but as dangerously “mentally ill”.

J.Sotomayor is not impressed: “Well, what constrains the government under the Due Process Clause from invoking a dangerousness merely because someone has a long history. We have many criminal defendants with long histories of violent behavior. Many of them continue that violent behavior in prison and some of them at the end of their term are let out, because their term has been completed” (11/8-15).

In other words, once you’ve equated a record of violent convictions with ‘mental illness’ [and perhaps simply one conviction; see below] then you can imprison anybody, even a first time offender, as dangerously mentally ill. The Constitutional problem – she implies – is that once your sentence is completed the government has no more authority or responsibility to hold you and you’re free again.

The government nowadays is trying to make the case that since it has now made lots of political points by promising to provide Total Safety (from sex offenders, anyway, whom it helped to create as Monsters), then it needs to find some ‘authority’ in the Constitution, some ‘power’, that will let it fulfill the ‘responsibility’ that it has designed for itself (automatically setting itself in opposition to its already-sworn responsibility and duty to uphold and protect the Constitution!).

This is where the Regulatory-Preventive Nanny State has led the country and the Citizenry; and it was doing so long before Bush and Co. a mere 9 years ago crafted the Military-Interventionist State to fit through those same holes in the Constitutional ethos, punched open by the burgeoning Nanny State.

Slyly, Gov says that if you don’t have a “mental illness” then you can’t be civilly committed. (11/17-20). But of course, this is the cynical treachery at the heart of the mania, and it would make Stalin himself approve (which he should, since the Feds got the idea from him): if it’s your own cadres who get to say what is and isn’t ‘mentally ill’, then you can make any public promises you have to, because in the end the sausage will come out of your procedural process just the way you want it to.**

J.Sotomayor isn’t buying it and tries to get a straight answer: “… the connection between the nature of the mental illness and the constitutional power that you are claiming. What -- what is it that gives you that power?” (11/21-25)

Gov tries to flatter the Court (and deflect Sotomayor) with the Court’s own holdings: the Court itself (in Kansas v. Hendricks, the 1997 civil commitment of sex-offenders case which ruled that it’s Constitutionally OK) said that you need to prove not only ‘sexual dangerousness’ but ‘mental illness’. (12/1-8) This is a good place to remind you that ‘mental illness’ could be something as garden-variety as ‘personality disorder’, which most of the population, the Citizenry, could be diagnosed with. And, by the way, there is no actual official diagnosis called ‘sex offense’.

Gov deploys the Stalin scam again: “The question presented here is only whether, assuming that the Federal Government is acting within other constitutional constraints in making this civil commitment, whether Article I enables it to do so because of the special custodial role in these cases” (12/21-25) In other words, the government piously claims to be bound by the procedural process (although its own shrinks will be doing the deciding and all they have to show is that you still have that ‘personality disorder’ so you are still ‘mentally ill’).

And of course, the kicker is that the split second your sentence is finished, the government’s “special custodial role” ends and the government is no longer rightfully involved in your life so as to keep you locked up anywhere.

J.Scalia isn’t buying a bit of a it: “ … you are relying on the Necessary and Proper Clause right? [So] you say. But necessary and proper doesn't mean it is necessary and proper for the good of society. It means it is necessary and proper for the execution of another power that the Federal Government is given by the Constitution. Now why is this necessary for the execution of any Federal power? The Federal criminal proceeding has terminated. The individual is released. You could say it's necessary for the good of society, but that's not what the Federal Government is charged with. Why is it necessary to any function that the Federal Government is performing? It has completed its performance of the function of incarcerating this individual until he's served his punishment” . (13/1-16)

In other words, you’re trying to use the Necessary and Proper Clause [the Constitutional principle that simply asserts that the government can pursue whatever is Necessary and Proper to achieve one of its clearly enumerated powers – which the government hasn’t demonstrated at all]. But the N&P Clause requires a power you already have, and you haven’t told anybody what that power is.

And moreover, he continues, since the criminal stuff is finished and he’s finished his sentence, what have you got? You can’t just say that it’s N&P for the good of society – because that’s not a responsibility that the Federal government is assigned in the Constitution. So just what power does the government have such that it claims this civil commitment is necessary and proper to carry it out?

Bingo.

Gov goes back to its old vaudeville routine: “The question is: is it necessary and proper to the beneficial exercise of Federal powers. And so this is, that it is necessary and proper to the beneficial or, what I said before, the responsible exercise of the Federal power to operate a criminal justice system, which includes the responsibility to ensure that those people who have been in custody in that Federal -- in that criminal justice system, are not released irresponsibly” (13/17-14/1).

In other words, the government has a responsibility to see that these types are not “released irresponsibly” (which means to say that they are not hardly ever released at all).

And she adds – shedding crocodile tears of sensitivity – that the government “knows that there is nobody else to take appropriate custody and care, and that the reason that there is nobody else to take appropriate custody and care has to do with the Federal action itself”. (14/24-15/4) In other words, since the Feds have gotten him convicted and imprisoned, then they have a responsibility to see the thing through – even though the Feds think he’s ‘mentally ill’ enough to need more locking-up, but only to care for him appropriately. Charming. Such care and concern.

And do you imagine that “custody” and “care” – two totally distinct things – are going to have equal priority in the Feds’ scheme? Recall that this was exactly the problem in government thinking that I pointed out in the CASOMB Report from California in my immediately preceding series of Posts. You are going to get a lot more ‘custody’ than ‘care’.

Gov is on a roll and lays it on more thickly: “And what the Federal Government is doing here is essentially to deal with this transition problem to make -- to make sure these people don't fall between the -- the cracks, and to ensure that where there is a sexually violent and mentally ill person who one has reason to believe will commit further offenses, that appropriate care and custody of those people is ensured”. (16/3-9) This is a ‘transition’, doncha know? Although a transition “to a responsible civil life” that will probably never see a completion because the guy is going to be locked up (for “custody and care”) for quite a long time.

And now the government doesn’t “know” that the guy is going to commit more crimes, but only “has reason to believe” that he will. But hey, these are only ‘words’ and ‘abstractions’ and the government really doesn’t have much time to quibble with such things because there’s an ‘emergency’ and the government has that ‘responsibility’ to protect everybody from everything. This is where the Regulatory and Preventive State is taking everybody.

Gov will go on to note helpfully that it costs more than $65,000 a year to do the right amount of “custody and care” and that most States – the poor things – don’t have that kind of cash just now. (18/9-12) But nowadays, will the Feds have that kind of cash?

J.Scalia returns to the core problems: “I mean, this -- this is a recipe for the Federal Government taking over everything” (20/4-6) [italics mine] Nor does he stop at that, after Gov mumbles a moment in surprise at such a bald observation.

“The States won't do it, therefore we have to do it. It has to be done and therefore the Federal Government steps in and does it”. (20/8-10) [italics mine] And Scalia is right: the dynamic here is that if the Feds see something that they want done, and yet the power to do it resides Constitutionally in the States, and yet the Feds want it done, then the Feds simply assume that they have the power to do it.

I want to say right here that this whole dynamic flows from Carol Gilligan’s psychological theory of 1982 that ‘women’ handle life the way a mother around a breakfast table handles a bunch of squalling kids: don’t ask questions (kids aren’t reasonable anyway) – instead just do what has to be done to calm them and nobody can say it’s a bad thing.

As I said before, you can run a breakfast table full of kids like this, but you can’t keep a Constitutional Republic like this. Citizens are – and must be – mature adults.

And the Constitution relies upon the assumption that a critical mass of voters will indeed have achieved a basic maturational competence in order to platform their civic competence to Ground the government. That’s why this government can be asserted to be “of the People, by the People, for the People”: it’s not a gift TO the People, it is grounded in the People’s authority and maturity. If anything – hear this, ye Beltway elites! – government is a gift FROM the People.

Gov has to work fast here. She asserts “that -- that Congress … has limited the civil commitment power only to people who have been -- who are in the custody of the Federal Government and over whom the Federal Government has a distinctive responsibility”. (20/12-16) Neat. Except that this can include an awful lot of people (and maybe not just sex-offenders). It means that just because you are in Federal custody, then because of the ‘principle’ the government is trying to put over on the Court here, you could be declared – as the Soviets did and the Chinese do – ‘mentally ill’. Perhaps, in the Chinese mode, because ‘you just don’t get it’ and oppose the regime. Do you see where these things are going?

And forgive me for declining the Feds’ offer of conscientious and responsible ‘help’. I recall Lincoln’s comparing slavery to being tarred, feathered, and ridden out of town on a rail; faced with that prospect a gentleman said to the sheriff that If it’s all the same to you, I’m inclined to decline the honor.

And while I’m at it, I will repeat here the Russian peasant’s prayer: May God bless and keep the Czar … far away from us! To which one might be inclined to intone a hearty and serious Amen.

But Gov won’t let it rest there: she compares what the government wants to do here to the government having the right to retain an inmate who contracted a highly contagious disease – tuberculosis, say – while in prison. Surely, she says, you wouldn’t deny the government the authority to keep him until he was no longer infected – think of it, she purrs, as a “quarantining authority”. (20/17-25)

Of course, the sex-offender didn’t ‘catch’ anything while he was in prison, and sex-offense is not even a psychologically diagnosable disease – so this example doesn’t really apply here at all.

Trying to allay the doubts of J.Sotomayor, Gov then comes up with the fact that in addition to that “special relationship” you have with the Feds once you are in custody, the sex offenders are also “the people most likely to violate the Commerce Clause [crossing State lines to do their evil things] in the future … most likely to violate the laws because they have done so in the past and because they have mental conditions that make it extremely difficult – “ (23/10-16)

So once again you see the government claiming to read the tea leaves – and not just with sex offenders, but on principle, which means with just about anybody (and this after it failed to read the tea leaves in the Iraq War, Af-Pak, and the economy).

And the equally frakkulous principle that since you have violated the laws once, then you are most likely to violate them again. This principle gives the government tyrannical power not only over sex offenders over any Citizen who has broken a law – and that would probably be, let’s admit it, just about everybody.

Plus: there’s that old falsehood that most sex-offenses are committed by repeat offenders, when it’s now clear that 90% are committed by first-time offenders and that sex-offenders have the lowest recidivism rate of just about any offense-group. You wonder if the government wants to tell the truth at all.

J.Stevens raises the uncomfortable point that this statute applies not only to sex-offenders but to anybody who has committed a crime. A person, he notes, could be a bank robber, and yet just before his release could be declared by the Feds to be a “potential sexual offender” - to which Gov replies that Yes, that’s sorta true. (24/3-11)

But, Gov slyly notes, only if a person had at some point engaged in “sexually violent behavior” (24/20) Now I hold no brief for sexual violence, but the entire SO community knows that “sexually violent behavior” – especially in the opinion of clinical providers of a government or vicitmist bent – could be defined as just about anything. Which means that if the offense could be anything, then anyone could be an offender. This is a government at war with its Citizenry.

Or more accurately: a government declaring war on its Citizenry.

Now this concludes the first half of the Oral Arguments – the Justices hearing from the Petitioner, the Government. In the next Post I’ll take up the Justices as they hear from counsel for the Respondents/Defendants.

I took this much time – and didn’t simply summarize the issues in an analysis approach – to give you a sense of the drama (and I don’t mean soap opera). And so that you can see how matters of huge portent to the future of the Republic and The People can hide in what might appear to be lots of words and subject not of general interest to folks.

And so that you can get a deeper sense of how important the work against the SO mania is: the mania itself is a symptom of things going grievously wrong in the country, and most surely in the government – Federal even more ominously than State.

Lots to do!

NOTES

*See my Post on an excellent Glenn Greenwald article about government and the Constitutional priority of Due Process over a purported right to Total Protection here. The Post contains a link to the article.

**It was this diabolically brilliant insight of Stalin’s that provided the US military the solution to the impossible demand Harry Truman, with Jimmy Doolittle’s recommendation, made upon it in 1946: make the military justice system conform to American law and the Constitutional ethos. It was impossible because the whole idea of a military is to take orders from the top down and guarantee a victorious outcome.

But with Stalin’s plan, you can set the stage to look just like a Perry Mason courtroom, except with nice uniforms and more flags, and still get exactly the outcome you want because everybody in the scene works for you: judge, prosecutor, cops (the sainted NCIS who got a TV show about them), the prosecutors (the sainted JAGs who got a TV show about them), the defense counsel, the witnesses, and the defendant. And the government that runs the show – through the General officer who convened the courtmartial in the first place – is also a Party to the case. Wheeeeeeee! If the conviction rate is only 97% it’s because 100% might look suspicious.

The military waited to see if Harry was dis-elected in 1948, and when he wasn’t they put Stalin’s idea into uniform and called it the Uniform Code of Military Justice, unveling it in 1950. Marvelous. Fifty years later, when it was reviewed from within the government itself, the UCMJ was assessed as still having “too much command influence” to really work as advertised. But of course, the advertising is the only ‘Constitutional’ part of the thing.

And the band plays on.