Preventive Detention And The Supreme Court

By Big Tent Democrat, Section Supreme Court
Posted on Fri May 22, 2009 at 06:09:06 PM EST
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The ongoing discussion of preventive detention is likely to spill over into the discussion of President Obama's Supreme Court choice, expected to come in the next few weeks. For example, Professor Darren Hutchinson notes that Solicitor General Elena Kagan, reported to be on President Obama's shortlist, stated in her confirmation hearing that she believes indefinite detentions of enemy combatants would be constitutional:

[Kagan] echoed comments by Atty. Gen. Eric H. Holder Jr. during his confirmation hearing last month. Both agreed that the United States is at war with Al Qaeda and suggested the law of war allows the government to capture and hold alleged terrorists without charges. . . . Last year, the Supreme Court dealt the Bush administration a setback when it ruled these alleged "enemy combatants" have a right to be heard by a judge and to plead for their freedom. But the high court left unanswered whether accused terrorists and others with suspected ties to Al Qaeda can be held for years without a trial.

This burgeoning issue will certainly make for an interesting confirmation process as we may see Obama's choice get criticized from both sides of the ideological spectrum.

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Preventive Detention And The Supreme Court | 15 comments (15 topical)

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Oh really? (5.00 / 1) (#7)
by pluege on Fri May 22, 2009 at 07:38:34 PM EST

Both agreed that the United States is at war with Al Qaeda

I must have missed Congress' declaration of war on on the nationless organization.

From Wikepedia: Despite the constitutional requirement that Congress declare war, .... There was not a war declaration, either in connection with Al Qaida or in Iraq.

: More interesting is the Bush (5.00 / 2) (#8)
by oculus on Fri May 22, 2009 at 07:48:28 PM EST

Admin. decision not to close the deal in Afghan. when our military purportedly had the honchos cornered. Do the detainees whom we are detaining due to their alleged connection to al Quaida have an argument for release?

: I guess that's not true (none / 0) (#13)
by Militarytracy on Sat May 23, 2009 at 09:25:07 AM EST

I thought it was but the soldier person laying next to me claims we declared war on the Barbary pirates.

Law of war is not (5.00 / 1) (#9)
by coast on Fri May 22, 2009 at 07:55:15 PM EST

a blank check to capture and hold individuals. It only applies to members of the enemy's armed forces or other persons seized fighting on the battlefield. It does not apply to civilians planning acts of terrorism thousands of miles away from the battlefield.

: Agreed! (none / 0) (#10)
by TeresaInSnow2 on Fri May 22, 2009 at 08:08:55 PM EST

One may be able to "liberally" parse the Geneva Conventions to say that "preventive detainment" adhere's to it, but it
DOES NOT ADHERE TO THE SPIRIT OF THE GENEVA CONVENTIONS.
No way, no how.
And BTW, what is torture? Is taking someone away from their family possibly for the rest of their lives because you think they might commit a terrorist act torture? I think it is....
And will this stupid strategy actually invoke more terrorism? I think it will.

Do you a) think it will be Kagan or (none / 0) (#1)
by andgarden on Fri May 22, 2009 at 06:20:46 PM EST

b) think that whoever is nominated, s/he will agree with the administration on this issue?

I think it will be Kagan (none / 0) (#2)
by Big Tent Democrat on Fri May 22, 2009 at 06:28:42 PM EST

Really cautious (none / 0) (#3)
by andgarden on Fri May 22, 2009 at 06:30:56 PM EST

But that's part and parcel, no?


I am comfortable with Kagan myself (5.00 / 0) (#4)
by Big Tent Democrat on Fri May 22, 2009 at 06:33:29 PM EST

but perhaps I'll be unpleasantly surprised.

We'll see what happens.


: Oh, I think she's a great choice (none / 0) (#5)
by andgarden on Fri May 22, 2009 at 06:34:15 PM EST

I mean cautious in the sense that she was just confirmed by the Senate.

Was Kagen questioned (none / 0) (#6)
by oculus on Fri May 22, 2009 at 07:34:49 PM EST

About due process notice and right to produce evidence of re those deemed enemy combatants?

Is she looking for common ground re a woman's choice?

I'm Thinking Kagan Too... (none / 0) (#11)
by blogname on Fri May 22, 2009 at 10:19:29 PM EST

Thanks for the posting. I am beginning to think Kagan will get it -- for this and other reasons. Nevertheless, because so many factors will ultimately influence the selection, it is difficult to predict the outcome with certainty. Earlier in the process, however, the White House began floating a line that caught my attention: Obama will likely have several opportunities to appoint justices to the Supreme Court -- and other opportunities to appoint a Latino.

Obama is extremely risk averse. Kagan is probably the safest choice because she recently sailed through the confirmation process. She also has published very little scholarship (I was actually suprised by the amount of scholarship she has listed on Westlaw) in an area of law that usually lacks the social and political drama of individual rights and equal protection. Furthermore, as a nonjudge, she has no judicial opinions under her belt. Stay tuned....

D. Hutchinson

I'm No Lawyer, (none / 0) (#12)
by bob h on Sat May 23, 2009 at 08:42:44 AM EST

and see the principle of preventive detention as very bad, but I try to put myself in the President's shoes on this. There are undoubtedly (a small number) of unrepentent, recalcitrant detainees who would be dangerous if let go, but on whom the evidence is lacking for trial.

What do those of you decrying preventive detention do in this case? Let them go? Try them with whatever you have got?

It seems that some are veering pretty close to dough-faced liberalism here.

: Not Vexing (none / 0) (#14)
by blogname on Sat May 23, 2009 at 03:29:21 PM EST

That happens a lot. But consider this possibility: Maybe the evidence is lacking because the invidiuals are not dangerous and have not committed a crime.
Your argument -- and Obama's -- tosses out the presumption of innocence. The comment ignores the principles in the Bill of Rights. No matter how "dangerous" the cops and prosecutors might "believe" a person is, they cannot just keep them in prison to protect the public.
Presumably, if an individual is so dangerous that the government must subject the person to prolonged detention some evidence would exist to substantiate that risk. Well, at least "we" made those arguments during the Bush administration.

last i checked, we aren't (none / 0) (#15)
by cpinva on Sat May 23, 2009 at 07:10:35 PM EST

officially at war with anyone, congress not having declared such since wwII. a president doesn't have the constitutional authority to declare war, bushco notwithstanding.

neither does congress or the president have the authority to preventively detain anyone, explicitly denied in the constitution. as such, it isn't even an issue for discussion.

the only issue for discussion is who will be held criminally liable for false imprisonment, under color of law, in both the present and most recent administrations?