Yesterday Sheldon White house was quoted on a blog by Empty wheel suggesting that detainees could be held because they are a danger to self and others under the same basic philosophy of the mental health commitment. You can read her post about it here

To argue by analogy, one can go to court and to a civil standard of proof show that someone is a danger to themselves or others, and obtain a civil commitment restricting their freedom. If we can do this with Americans, it seems logical that we could also do it with foreign terrorists. The question is, what checks and balances should surround the initial determination of danger, and what safeguards should stay with the person through the period of confinement? I look forward to hearing more from the Obama Administration about what schedule of rule of law safeguards they intend to apply, but I think that the example of civil commitment shows that it is not categorically forbidden to restrict someone’s freedom based on a finding of danger.

That quote is problematic to me for many reasons. As a member of the mental health profession, the analogy seems disingenuous and lacks understanding about what a mental health commitment entails. Furthermore, it seems the purpose of the statement is more to rationalize the holding of people deemed a "danger to self and others" than it is a valid solution for the detainees. If the analogy is meant to rationalize the holding of the detainees, an understanding of the commitment process would prove an interesting comparison. While it may be true that these people could be held, the conditions of their holding would not be anything similar to being held in a maximum security prison and would likely give them "rights" that they have not been given up to now. Right now, the current status quo for these detainees sorely violates the statutes in most states for involuntary commitment.

If however, Whitehouse was proposing a process or solution to the detainee problem and suggesting that each prisoner be evaluated under these guidelines then perhaps this would pose a viable solution. However, this solution would give these detainees rights that might mean it would be legal to hold them no more than 24-48 hours if observation did not find them to be incompetent to take care of themselves, or a danger to self or others.

This statement from wikipedia summarizes current law in regard to holding people involuntarily.

It has been established through O’Connor v. Donaldson that an individual cannot be involuntarily committed unless he is a danger to himself or others and that while committed, he must receive appropriate treatment. The case of Rennie v. Klein established that an involuntarily committed individual has a qualified constitutional right to refuse psychotropic medication

Their are some problems with using the mental health hold as a way to detain these people. First of all, the rules vary from state to state. One of the areas of variance has to do with the issue of "incompetence" as a valid reason to hold a person. Some states have provision for those who are "gravely ill" or "incompetent" but other states only allow involuntary commitment for reasons related to safety.

Furthermore, once in custody these people, because they have not been convicted of a crime, have rights that the detainees have not been given up to now. Patients have the right to a hearing to determine the truth of their need for confinement. Furthermore they have the right to have their case reviewed frequently. They would have a right to lawyers, and doctors of their own choosing. They would be allowed advocacy. This process, would seem to have the potential to open the United States government torture policies to more, not less scrutiny. Under observation, documentation would be required. Anything these people might say about who hurt them, how they were hurt, would become part of the mental health treatment plan.

The idea that you could simply isolate and hold these people without valid mental health care is not accurate. Involuntarily held patients have a number of rights. However, these rights vary state to state and are difficult to summarize on a "national" level. Therefore, this is a link to an example of Ohio’s patient rights.

* You should be committed only if you meet the legal definition of "mental illness" and are an immediate danger to yourself or others.
* You have a right to be represented by a competent attorney who listens to what you want and advocates for what you want.
* You have a right to have an independent doctor or psychologist evaluate you and testify on your behalf.
* You have a right to an attorney and an independent evaluation even if you do not have any money.
* You have a right to be committed to the place that gives you the most freedom.
* You have the right to be treated with dignity. Your thoughts about what treatment will be provided to you should be listened to and considered.
* You cannot be forced by hospital staff to take medication except in an emergency (an immediate danger to yourself or another person). In the community, you cannot be forced, for any reason, to take medication against your will.

Here is a link to Idaho’s statues.

One note of interest is that most states have a provision about "least restrictive means". This means that a patient is held or confined only to the degree necessary for safety. This means that sometimes patients are confined by requiring they live in a "group home" instead of independently. However these group homes are not locked facilities. The law provides that patients are given as much freedom as they can be given without being a danger or threat.

The only exception to this rule would be in cases where there has been a prior conviction regarding sex offenders. These people can be monitored in varying levels of "confinement" and subjected to some "control" and continued monitoring for the rest of their lives. From wikipedia:

In the 1990s a novel and extremely controversial use of involuntary commitment laws known as "Mentally Abnormal Sexually Violent Predator" laws were enacted in order to hold sex offenders after their terms have expired. (This is generally referred to as "civil commitment," not "involuntary commitment," since involuntary commitment can be criminal or civil). Supporters claim that this is a valid use of involuntary commitment laws, while opponents claim that this is a potentially extremely dangerous way of bypassing the safeguards in the criminal justice system. This matter has been the subject of a number of cases before the Supreme Court, most notably Kansas v. Hendricks.

These detainees have not been convicted of any crime and therefore could not be subjected to these provisions. Not legally anyway.

So the questions left to answer are: was Whitehouse proposing that each detainee be evaluated for threat to society, by a treatment team, then be given a mental health hearing, then be treated in accordance with the treatment plan established? If this is true, would the process be valid and in accordance with our constitution? Would these people then be cared for in the least restrictive means both for our safety and theirs? Or was he simply trying to rationalize the idea of holding people without a trial? What do you think?