Kagan On Preventive Detention

By Big Tent Democrat, Section Supreme Court
Posted on Sat Apr 17, 2010 at 09:22:04 AM EST
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With Solicitor General Elena Kagan the likely pick to be the next Supreme Court Justice, I am going to start providing some primary source materials for consideration. Earlier, I discussed Kagan's 2001 law review article on Executive power. I have previously discussed my views on preventive detention. In this post, I provide the transcript of Kagan's testimony in the Senate Judiciary Committee hearings on her nomination to be Solicitor General. Below the fold, I provide the quotes from her exchange with Senator Lindsey Graham on preventive detention:

[SEN.] GRAHAM: To pick up where Senator Feinstein left off, which is an excellent question, and this country needs to discuss this openly and, quite frankly, somewhat behind closed doors. But, Dean Kagan, do you agree with me that under normal criminal law, there is no process to hold someone indefinitely without trail under domestic criminal law?

KAGAN: Under normal criminal law? Yes, I do agree with you.

GRAHAM: And if you had a criminal statute that would allow someone to be holded (ph) forever without trail, that would no longer be criminal law. It would be something else.

KAGAN: That seems right, Senator.

GRAHAM: OK. Now, if one's at war -- let me ask this. Do you believe we're at war?

KAGAN: I do, Senator.

GRAHAM: OK. Let me read from Mr. Holder here. What -- would you consider him your boss?

KAGAN: I do, in a manner speaking, Senator, he can fire me, so that makes him my boss.

GRAHAM: OK. Well, that would make him your boss, yes. But it seems to be -- I think he'll be a good boss. And I think you'd be very qualified for you job. [. . .] I asked him, "Do you think we're at war"? And he said, "I don't think there's any question but that we're at war." I think, to be honest, I think our nation didn't realize that we're at war when, in fact, we were.

When I look back at the '90s and the Tanzania, the embassy bombings, the bombing of the Cole, I think we, as a nation, should have realized that, at that point, we were at war. We should not have waited until September 11, 2001 to make that determination. Do you agree with that?

KAGAN: It's easy to agree with my boss in that circumstance.

GRAHAM: OK. And I asked him where the battlefield might be. If we're at war, I asked him, "Where would the battlefield be." And he gave what I thought was a -- I said, "If you're trying to explain to a civics class, a ninth grade civics class about the battlefield in this war, what would it be"? And he said, "The battlefield, there are physical battlefields, certainly in Afghanistan. But there are battlefields potentially we know in our nations. They're cyber battlefields that we're going to have -- we going to have to engage."

There's also -- and this sounds a little trite, but I think it's real. There's a battlefield, if you want to call it that, with regard to hearts and minds of the people in the Islamic world. We have to do things in a way -- to conduct ourselves in a way that we can win that battle as well, so that people, who might otherwise well intentioned, do not end up on the wrong side and against us. Do you agree with that?

KAGAN: (OFF-MIKE)

GRAHAM: Well, I certainly do too. And I told him I thought what he was speaking of was the morale high ground. There's a physical high ground in -- in traditional war. But in this war, there's the moral high ground and we have to maintain that moral high ground. I think at times we've lost it. We also have to remember they're at -- we're at war.

Now, I asked him this question, "Now, when you talk about the physical battlefield, if our intelligence agency should capture someone in the Philippines that is suspected of financing al Qaida worldwide, would you consider that person part of the battlefield, even though we're in the Philippines, if they were involved in al Qaida activity"? Holder said, the attorney general said, yes, I would. Do you agree with that?

KAGAN: I -- I do.

GRAHAM: So that gets us back to Senator Feinstein's question. Under law of armed conflict, as I understand it, under the Geneva Convention, Article V says, if there's a dispute about status, what you're entitled to is an independent, neutral decision maker. And in most wars, that can be a battlefield determination by a single officer. But because the is a war without end, that will not end on -- with a ceremony on the USS Missouri, there will be no defined end, I am all for giving more due process.

But the point she's making I think is an important point. You cannot detain somebody indefinitely under criminal law. They have to have a trial. But under military law, if you're part of the enemy force, there is no requirement to let them go and go back to the war and kill your own troops. Do you agree that makes sense?

KAGAN: I think it makes sense. And I think that you're correct that that is the law.

GRAHAM: So America needs to get ready for this proposition that some people are going to be detained as enemy combatants, not criminals. And there will be a process to determine whether or not they should be let go, based on the view that we're at war, and it would be foolish to release somebody from captivity that's a committed warrior to our nation's destruction.

Now, the point we have to make with the world, would you agree, Dean Kagan, is that the determination that led to the fact that you're an enemy combatant has to be transparent?

KAGAN: It does, indeed.

GRAHAM: It has to have substantial due process.

KAGAN: It does, indeed.

GRAHAM: And it should have an independent judiciary involved in making that decision beyond the executive branch. Do you agree with that?

KAGAN: Absolutely.

GRAHAM: So we can go tell the world that this person is being held off the battlefield, not because one person says so, but because there's a process that led to that determination where you have an independent judiciary involved. Do you think that's important for the nation to make sure we have that kind of process?

KAGAN: I do, Senator.

GRAHAM: OK. I'll look forward to working with you and the -- this new administration. I've come up with a process that will make that statement, to let the world know that no one is being arbitrarily held based on just suspicion or -- or -- or emotions, but based on evidence and a legal process. And some of these people are going to be held, maybe for the rest of their lives. But it will be based on our values, not theirs.

As I said at the time, there is nothing Kagan said in her testimony that I disagree with. YMMV.

Speaking for me only

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Kagan On Preventive Detention | 99 comments (99 topical)

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Wow... (5.00 / 2) (#2)
by masslib on Sat Apr 17, 2010 at 10:11:25 AM EST

We've been at war since the '90's, and we can hold anyone forever as long as they are considered enemies in the war we've been at since the 1990's. Everyone is in agreement. Ok, so how careful are we to decipher which terrorists are those at war with us versus just terrorists? Is it enough if they self identify as al Qaida? I mean, let's say Chinese terrorists start attacking us, are they also part of the big war been going on since the 1990's? Are they if they self-identify as al Qaida? Or, do we require something more substantive?

Heh. We were at war but didn't realize it! (5.00 / 3) (#6)
by Dan the Man on Sat Apr 17, 2010 at 10:51:31 AM EST

Love that statement. But not only that, Kagan was also agreeing with Graham when he said the battlefields of the war included Tanzania, the embassy bombings, the the Cole bombing, and the Phillipines. And even cyberspace. So basically she agrees with the Bush argument the whole world is the battlefield. But since the terrorists can theoretically also go to Mars, the whole solar system is the battlefield. Or maybe the whole universe. Or the whole multiverse. Incidentally, this "the battlefield is everywhere" view contradicts her statment that a person may be "held off the battlefield" because since "the battlefield is everywhere", there is no place anywhere which is off the battlefield.

Also, it's sort of funny Graham/Kagan would be conversing about the war against terrorism that we didn't realize we were fighting since the 90's and didn't mention the one war against terrorism we KNEW we were fighting in the 90's - the war against domestic terrorism i.e. Timothy McVeigh. Furthermore, this war is continuing even today. The tax protesting suicide attack against the IRS is certainly one of these terrorists. Also, the recent Christian militia terrorist arrests in Michigan. These terrorists are not just limited to Michigan. As reported in the news, "raids were conducted over a 4 1/2-hour span in Michigan, Ohio and Indiana on the night of March 27." Yet do we hear one peep from the Graham/Kagans of the world about how preventive detentions should be applied to these terrorists? No way. Heck, the Graham/Kagans of world aren't even willing to call them terrorists.

As usual the only "terrorists" who must suffer preventive detention are the muslims and the brown people of the world.


Exactly... (none / 0) (#7)
by masslib on Sat Apr 17, 2010 at 10:54:22 AM EST

I'm confused, how do we differentiate enemy combatants from regular old terrorists? I think to say we've been at war since the 1990's, the battle field is endless, etc., sounds a lot like governing from a position of fear to me. I'm not impressed.


Then vote for pols (5.00 / 1) (#15)
by Big Tent Democrat on Sat Apr 17, 2010 at 11:37:49 AM EST

who do not say that.

You want the Court to make the rules instead of interpreting the Constitution.

I'm not buying that approach.

Because of you live by the Court, you die by the Court.


Should we? (none / 0) (#26)
by jbindc on Sat Apr 17, 2010 at 12:22:57 PM EST

If people put out manifestos and videos saying they hate you for what you are and will kill you at any opportunity, then absolutely should we take care of them before they kill us,

Acting out of fear is cowering in a corner saying, "Please don't hurt us. What can we do to make you like us? Please, please like us.". Sorry - I agree with Graham and Kagan on this.


I think we treat people who threaten the US (5.00 / 1) (#36)
by masslib on Sat Apr 17, 2010 at 01:04:27 PM EST

as criminals.


When a foreigner (none / 0) (#37)
by jbindc on Sat Apr 17, 2010 at 01:12:02 PM EST

Straps a bomb onto his body and blows up an American property, drops a vial of smallpox in a subway station, or flies a plane intentionally into a building, that is an act of war.

Also not to say that Timothy McVeigh, Eric Rudolph, and the guy who flew the plane into the IRS building weren't terrorists ( they were).


So is it your (none / 0) (#40)
by masslib on Sat Apr 17, 2010 at 01:22:39 PM EST

belief that Ramzi Yousef should not have been tried in the US courts and should have rather been held as an enemy combatant or tried before a military tribunal?


It is my belief (none / 0) (#42)
by jbindc on Sat Apr 17, 2010 at 01:34:48 PM EST

That either could have done.

But my opinion, like everyone else's here means nothing as we are not constitutional scholars, nor privy to all the information.


See, now I think people (none / 0) (#43)
by masslib on Sat Apr 17, 2010 at 01:39:53 PM EST

would have reacted with total shock if Bill Clinton had said, well, of course, this is an act of war, we will hold him indefinitely or until we can arrange a war tribunal.

I just don't understand where the boundaries are in one being charged as a criminal terrorist and one being held as an enemy combatant. Is it their status as a citizen?


Maybe (none / 0) (#45)
by jbindc on Sat Apr 17, 2010 at 02:00:28 PM EST

But it's a different time now. So many things have changed since then.

Turning your argument around - do think the Japanese pilots who bombed Pear Harbor should have been tried in criminal court? Remember - we were not at war with them.


Right... (none / 0) (#46)
by masslib on Sat Apr 17, 2010 at 02:05:44 PM EST

But that a state ordered attack.


So (none / 0) (#47)
by jbindc on Sat Apr 17, 2010 at 02:16:43 PM EST

If they wear uniforms, and just aren't part of an organized network, then it's different? The attack on the WTC and the Pentagon were just as well coordinated (if not more so) thesn the attack on Pearl.


Yes (5.00 / 4) (#48)
by waldenpond on Sat Apr 17, 2010 at 02:32:49 PM EST

The argument is that yes it is different when it is an act by a state or govt rather than a group of extremists. Under the faux global war on terror people are requiring the US be at a perpetual state of paranoia and war with the world.

A couple of nutjobs from the US take action and under this new 'understanding' of an act of war, the US must by necessity be bombed and invaded.... or they could be treated as criminals and prosecuted.


9/11 (5.00 / 1) (#49)
by jbindc on Sat Apr 17, 2010 at 02:46:47 PM EST

Was not carried out by " a couple of nutjobs". That's where your argument falls short. War from now on is not going to consist of large armies moving across the landscape, so our idea of what constitutes a "battlefield" must change as well.

Unfortunately, and even though many would like it to be, thisis not a question with a black and white answer.


Nineteen (5.00 / 3) (#52)
by waldenpond on Sat Apr 17, 2010 at 03:24:33 PM EST

nutjobs (from Saudi Arabia) to be expand on my 'argument.'

Must change 'battlefield'? Yeah, be afraid, be very afraid. Boo....

Gee, or you could realize they are criminal conspiracies.

Britain easily repels indefinate detention but the US is living up to it's worst stereotype... cringe worthy whining, weak and frankly... cowardly.

For a growing number, it is weirdly black and white.... people are paranoid, easily influenced by Republican talking points and think the cost (money and dead brown bodies) are worth it and they are willing to embrace an authoritarian regime for a false sense of security.

There are real risks that need to be managed and laws that are broken that need to be enforced, but exclude me from living in that paranoid and extremist view of someone else's world.


You're (none / 0) (#53)
by jbindc on Sat Apr 17, 2010 at 03:42:58 PM EST

Certainly entitled to your opinion, but as the greatest constitutionalinds of our time can't agree, I'm going to stick with the fact that it really is more complicated than what commenters on a blog think.


19 nutjobs? (none / 0) (#61)
by Big Tent Democrat on Sat Apr 17, 2010 at 04:32:50 PM EST

And Bin Laden and KSM and the rest of Al Qaida had nothing to do with it?

That's an opinion of course. It is not held by most of the Democratic Party and I daresay, not by many liberals either.


Well, I don't agree with this... (5.00 / 1) (#98)
by masslib on Sat Apr 17, 2010 at 10:45:01 PM EST

I understand this was the act, or series of acts, organized by a sophisticated terrorist network, but I still don't think that combatting terrorist networks should be treated as going to war with other nations, unless we indeed go to war with nations that harbor or aide these groups in acting us. I still think we can treat criminal terrorist organizations as criminal terrorists, as we did with the '93 al qaeda WTC bombings.


What liberals? (none / 0) (#77)
by waldenpond on Sat Apr 17, 2010 at 05:19:26 PM EST

Looks to be fewer every day. ha! After a few years of Republican talking points and Jack Bauer, the US now supports torture for cr@ps sake. woohoo!

It is not held by most of the Democratic Party and I daresay, not by many liberals either.

Gee duh, coming from you, who is in no way 'progressive' nor 'liberal' where the war on terror is concerned.

Like I said, some think this is a series of serious criminal conspiracies and should be prosecuted. Some of us believe in the superiority of laws over authoritarian militarism.


Find the liberals who take your view (none / 0) (#78)
by Big Tent Democrat on Sat Apr 17, 2010 at 05:22:20 PM EST

I'll find ones that see it my way.

My point is your view, whether right or wrong, is not mainstream liberal thought.


: Well, "mainstream liberal thought" (5.00 / 1) (#89)
by FoxholeAtheist on Sat Apr 17, 2010 at 07:05:11 PM EST

has, evidently, lost interest in the rule of law - and under those conditions you could 'build a case' that I masterminded nine-eleventy (Shakesville term).

Like Beck? (none / 0) (#27)
by squeaky on Sat Apr 17, 2010 at 12:24:18 PM EST

et al?


: It's (none / 0) (#30)
by jbindc on Sat Apr 17, 2010 at 12:30:19 PM EST

What the Dems seem to best in the light of Beck et al. Matbe that's why they are so squishy on foreign policy.

Jb, I've agreed with you on other issues (none / 0) (#90)
by FoxholeAtheist on Sat Apr 17, 2010 at 07:28:58 PM EST

but certainly not on this subject.

(As I never tire of saying) the President just issued a decree to assassinate an American citizen, without any due process whatsoever. How does that make you safer - and what moral authority do we have to condemn the lawlessness of others?


: That's ok (none / 0) (#101)
by jbindc on Sun Apr 18, 2010 at 07:53:58 AM EST

We don't always have to agree - that's why I like coming here. And even though there are a few around here who want everyone to agree and "toe the party line", I wouldn't want or expect everyone to agree - that would be boring and would make this place another Orange one.
I was at a party last night and talking to a friend who works for a House Committee that is involvef in this topic. This person works for the minority, so I was asking about some of these things and KSM, and the like. It was really interesting to hear their perspective on things and it had nothing to do with what the talking heads or bloggers are saying. This person told me about the very real legal questions that he/she spends their days researching. Much of the problem with these issues is that they are really new areas of law that don't have answers, despite what Hannity, Beck, Olbermann, or Maddow say.

Just absurd (none / 0) (#9)
by Big Tent Democrat on Sat Apr 17, 2010 at 11:01:37 AM EST

Discussing this issue with some of you is clearly a waste of time.


What, in particular, is "absurd' (none / 0) (#56)
by FoxholeAtheist on Sat Apr 17, 2010 at 04:24:22 PM EST

and a "waste of time" in the comment you are replying to BTD?


Nothing at all (none / 0) (#60)
by Big Tent Democrat on Sat Apr 17, 2010 at 04:30:53 PM EST

in your view I am sure.

Play the outrage game as you like.

When you have something substantive to say, let me know.


: See my comment #82 (none / 0) (#84)
by FoxholeAtheist on Sat Apr 17, 2010 at 06:20:27 PM EST

LINK: about how Obama's elimination of the term "enemy combatant" may, or may not, alter a detainee's status under the Geneva Conventions.
You may not find it substantive, or I may not know WTF I'm talking about, but take a look in good faith anyway.

What's the alternative? (none / 0) (#4)
by jbindc on Sat Apr 17, 2010 at 10:20:52 AM EST

If you read Graham's comments, which Kagan agreed with, he said after it has been determined using due process. Can people get it wrong? Yes - but could you make the call to let a person go in a real life scenario?

Obviously this should be done on rare but serious situations, but it's impossible to say it should never be used.


: Sorry for the double post (none / 0) (#5)
by jbindc on Sat Apr 17, 2010 at 10:21:34 AM EST

: Some people are not interested (none / 0) (#10)
by Big Tent Democrat on Sat Apr 17, 2010 at 11:02:40 AM EST

in an actual discussion of the issue at hand.
The 2 commenters besides yourself are clearly in that group.

We? (none / 0) (#8)
by Big Tent Democrat on Sat Apr 17, 2010 at 11:01:04 AM EST

Look,if people want to act as if there is nothing worth discussing intelligently, honestly and with attention to detail, that is up to you.

I simply will not waste my time with you and others like you who are willing to act in this way.

Enjoy your outrage.

It has no actual connection to the issue at hand.


We, as in the United States. (5.00 / 1) (#16)
by masslib on Sat Apr 17, 2010 at 11:40:44 AM EST

Where do you get off? I really did not know that we were supposed to have been at war since the 1990's. I think we should treat terrorists as criminals, not enemy combatants even if they are with al Quaeda, or self identify as such. I'm sorry if you don't consider my small opinion serious, or of merit, or smart enough, or whatever. It was my honest reaction to reading the testimony you posted.


: Yell at Graham if you wish (none / 0) (#18)
by Big Tent Democrat on Sat Apr 17, 2010 at 11:43:32 AM EST

Whether we were at war in the 90s ornot is not the question.
By the qya, here is where I get off telling you you are not engaging in a serious discussion - you do not address a freaking single issue about the discussion. Not a freaking one.
You want to discuss the issues? Try actually discussing the issues.

BTD, would you debate Greenwald on indefinite (none / 0) (#62)
by FoxholeAtheist on Sat Apr 17, 2010 at 04:37:08 PM EST

detention, say on the radio, or a webcast?


Of course (none / 0) (#64)
by Big Tent Democrat on Sat Apr 17, 2010 at 04:39:43 PM EST

I have debated him in blog posts on it.

Check the links in this post.

BTW, you know who I think would agree with me? John Paul Stevens.

I wish people would actually read Hamdan.


Bood point. (none / 0) (#66)
by oculus on Sat Apr 17, 2010 at 04:41:06 PM EST

What do you mean "debated him (none / 0) (#79)
by FoxholeAtheist on Sat Apr 17, 2010 at 05:27:44 PM EST

[Greenwald] in blog posts"? Do you mean, he wrote a post and you referenced his points in an alternate post of your own (or vice versa)? I've followed those links both ways. Imo, that format allows for a lot of selective editing and obfuscation - deliberate or otherwise.

A live one-on-one verbal debate on radio or webcast is what I'd like to see.


Believe me (none / 0) (#80)
by Big Tent Democrat on Sat Apr 17, 2010 at 05:30:55 PM EST

The lack of a podcast debate on the subject would not be because of my unwillingness to do it.

Greenwald is a bigger fish than me. I doubt I am worth his time on TV, radio or podcasts.

This is what he does for a living, it is not what I do for a living.

Glenn is a friend of mine so I begrudge none of this.


: I do believe you my good man. (none / 0) (#83)
by FoxholeAtheist on Sat Apr 17, 2010 at 06:12:23 PM EST

Make that "alleged" terrorists... (none / 0) (#55)
by FoxholeAtheist on Sat Apr 17, 2010 at 04:17:51 PM EST

That being said, I completely agree with the points you've made.


: Replying to Masslib's comment #2 (n/t) (none / 0) (#63)
by FoxholeAtheist on Sat Apr 17, 2010 at 04:38:40 PM EST

I may be another one of the clueless, (5.00 / 2) (#19)
by Anne on Sat Apr 17, 2010 at 11:44:04 AM EST

but it seems to me this is an argument about can we v. should we, with the "can we" part being decided in one branch, and the "should we" part being in the hands of another.

Sure, we can determine that it is legal to indefinitely detain someone under military law, but I still think we need to determine if that's who we are as a nation, if it is credible juxtaposed against our civilian system of justice - or if we care that the two may seem to be at odds - and if it will replace one America - the America that governs via a Constitution and Bill of Rights - in the eyes of the rest of the world with another America - the one that is perceived as being that we can snatch anyone, anywhere at any time, and keep them forever because the both the physical world and the virtual one are one global battlefield.

The concern that I have with the so-called transparent due process of which Graham speaks in the quoted exchange is that the military's version of that is not weighted in favor of the accused. It's the reason why, as Glenn has written about extensively, this administration is slotting disposition of detainees into the venue most likely to result in conviction - and the military trials are the venue where the government's weakest cases are likely to end up.

The only opinion that matters with Kagan, or whoever the nominee is, is the legal one - the "can we" part - and she seems to be on board with that; I'd prefer that she wasn't, but given that Obama wants the authority to indefinitely detain, we're not likely to get a nominee who isn't.

That means that the "should we" part, at least as far as this administration is concerned, has also been decided, which is a shame. Together with the new policy of issuing kill orders for American citizens, we have the recipe for an authoritarian regime that never, in a million years, did I think would be headed up by someone who associates himself with the Democratic Party.

Why wouldyou prefer she wasn't? (none / 0) (#20)
by Big Tent Democrat on Sat Apr 17, 2010 at 11:52:11 AM EST

Is it your view of the Constitution that it does not allow for the holding of enemy combatants in the manner Kagan describes - with robust due process and judicial review?

If so, what is the basis of your view?


"Robust"? BTD, when did the Obama (5.00 / 1) (#70)
by FoxholeAtheist on Sat Apr 17, 2010 at 04:55:08 PM EST

Administration ever do anything "robust" in service of progressive ideals? The President is only robust when it comes to draconian politics.

The President just put out a hit on an American citizen.

Doesn't that render absurd any further discussion about the matter of "robust due process and judicial review" when it comes to indefinite detention?


A different point (none / 0) (#72)
by Big Tent Democrat on Sat Apr 17, 2010 at 04:56:39 PM EST

If we are discussing Obama Administration policies, then let's discuss them.

If we are discussing the views expressed by Elena Kagan, let's discuss them.

They are not the same thing.


Well, somebody needs to ask Kagan why (none / 0) (#74)
by FoxholeAtheist on Sat Apr 17, 2010 at 05:13:49 PM EST

she thinks indefinite 'preventive' detention would require any "due process" since there is no due process in Obama's decree to assassinate a U.S. citizen.

I would ask the same of you BTD. Why?


That issue (none / 0) (#76)
by Big Tent Democrat on Sat Apr 17, 2010 at 05:19:23 PM EST

requires a thorough discussion of the laws of war.

I can not do it justice in a comment.


BTD, yes indefenite detention certainly does (5.00 / 1) (#82)
by FoxholeAtheist on Sat Apr 17, 2010 at 06:10:21 PM EST

"require a thorough discussion of the laws of war". Do you know and understand those things yourself? Bush/Cheney didn't host any such discussions and we have also seen no such thing under Obama. When do you expect it to happen?

Are both Administrations ignorant and incapable of a "thorough discussion of the laws of war"? Or is it more to the point that an open discussion of this nature would lay bare the past, present, and future criminality of the 'war on terror'? I'm going with the latter conclusion.

BTW, as Greenwald noted (LINK):

"Obama dropped the 'enemy combatant' label" -- while, in fact, retaining the crux of Bush's extremist detention theory.

QUESTIONS

Don't the Geneva Conventions afford certain rights and protections to "enemy combatants" that would preclude indefinite/preventive detention?
Is that why the Obama Administration dropped the "enemy combatant" label?
What does the Obama Administration call the people they detain and do those detainees have the same Geneva Convention rights as "enemy combatants"?

Understanding (5.00 / 1) (#85)
by waldenpond on Sat Apr 17, 2010 at 06:26:38 PM EST

Goes back to the very beginning....Congress never voted for an Iraq war. They voted for a resolution to give the President the decision-making power of whether to launch a first-strike invasion of Iraq. The Constitution puts the power to declare 'war' with Congress. It doesn't seem to me that we are even 'constitutionally' at 'war'


I agree Walden regarding the (5.00 / 1) (#87)
by FoxholeAtheist on Sat Apr 17, 2010 at 06:41:23 PM EST

unconstitutionally of the Iraq War - and the criminality of the 'war on terror'.

My question to BTD is this: the Obama Administration no longer classifies detainees as "enemy combatants" - how does this affect their status under the Geneva Conventions - i.e. with respect to indefinite/preventive detention?


: It's a matter of wanting to have their cake (none / 0) (#95)
by cawaltz on Sat Apr 17, 2010 at 09:26:26 PM EST

and eat it too. Classifying this as a war makes things easier in terms of incarcerating people they deem a threat all the while maintaining state secrets. Meanwhile if it were indeed a war then we absolutely would not be discussing "indefinite" detention or arguing the Red Cross should not have access to these people because of "national security."

Here's my problem: (5.00 / 1) (#94)
by Anne on Sat Apr 17, 2010 at 08:49:48 PM EST

What, exactly, has the Obama administration done in the way of establishing this robust due process and judicial review they claim to support?

And where, exactly, has Kagan fleshed out her views outside of this one tiny exchange with Graham and a law review article from almost 10 years ago?

I happen to be opposed to indefinite detention; I think it's terrible policy, and if we've learned nothing else in the last 9 years, it ought to be that those in power will do what they can to circumvent whatever restrictions they believe are preventing them from carrying out their mission - because those in power ALWAYS believe the rules should not apply to them.

I don't begrudge you your support of Kagan, or your right to support the policy of indefinite detention, but I think Kagan's progressive credentials in this area are paper thin, she's been defending the Obama administration's decisions as Solicitor General, and I see her as a willing yes-person not likely to bite the hand that may nominate her to the Court.

And while it is true that the president has the ability to make progressive policy via the regulatory process, that presidential prerogative is a knife that cuts both ways, also able to be used to stifle and roll back progressive policy in the hands of a conservative president.


It is Complicated.. (5.00 / 2) (#22)
by squeaky on Sat Apr 17, 2010 at 12:01:15 PM EST

Viewing this policy through the lens of BushCo is very disturbing, because there was zero transparency. So we have seen the imaginable extremes of how a corrupt regime, like BushCO, can buy people from Pakistani traders and jail them indefinitely without any trial or even any public acknowledgement these people are in prison.

And then by extension, while we are at perpetual war, what happens to protesters of US policies who are considered dangerous because they incite dissent, which could result in violence from those who are prone to be violent?

It does complicate the matter further that we have shown to the world a double standard. Bush and his cronies have killed and ordered killed thousands, in order to gain political power in the US by fearmongering, but he and his administration escapes the law.

It is one thing to say that we are going to play by the rules now, due process, transparency, Geneva Convention etc, but that does not erase the crimes of BushCo or make the US appear any less hypocritical because we have a new Administration.

And does that also give the same people we seek to imprison indefinitely the right to capture US citizens because they say that they want to kill Muslims, Glen Beck comes to mind... Or almost any right winger..

And the natural extension of this is the Bush Doctrine of preventative war. If we are at war everywhere, there is no reason not to attack any country that harbors those we consider terrorists.

It gives the green light to Israeli policies toward Palestinians as well..

: Unitary Superpower (5.00 / 1) (#34)
by squeaky on Sat Apr 17, 2010 at 12:52:29 PM EST

Obama also said that unresolved conflicts, such as the Arab-Israeli conflict, affect the United States.
"It is a vital national security interest of the United States to reduce these conflicts because whether we like it or not, we remain a dominant military superpower," Obama said. "And when conflicts break out, one way or another, we get pulled into them. And that ends up costing us significantly in terms of both blood and treasure.‬"
It would be interesting to see the US apply indefinite detention to some of the Israeli terrorist as well.. lol
The game is unfortunately rigged.. a luxury befitting those who believe that they have the power to call the shots.

Personally (5.00 / 1) (#88)
by cawaltz on Sat Apr 17, 2010 at 07:00:31 PM EST

I like transparency and military tribunals ain't transparency.

I'm in the camp that says try them as criminals. Then again, I'm not for sweeping all our own little transgressions under the rug. I think the American people should have the right to a conversation where we have a "real discussion" on why one day someone like Saddam Hussein is our friend and the next he's not. Or Castro. Or by the way who exactly it was again who trained Osama Bin Laden? But hey, let's keep sweeping discussions like that under the rug because this whole global war on terrorism thing is going swimmingly. We've spent billions and still aren't any safer. Who needs health care or roads or anything else though besides the money to purchase lots of detention facilities to house our ever shifting definition of who is a threat indefinitely.

As for the "you're not a constitutional scholar" argument, I'd offer up that at one time "constitutional scholars" thought a good portion of our population should qualify as property.

The enemy is US (1.00 / 1) (#14)
by Yes2Truth on Sat Apr 17, 2010 at 11:24:51 AM EST

The greatest terrorist nation in the world is right
here on THIS continent. It carries out false flag
acts of terrorism at home (Okla. City, Waco, 9/11, Anthrax) and all around the globe.

So, if they're even half-way honest about detaining terrorists/war criminals, half of D.C. will be lodging at the Grey Bar Hotel.

That's what we need, (none / 0) (#17)
by Kimberley on Sat Apr 17, 2010 at 11:43:03 AM EST

as we attempt to have a serious discussion about preventive detention--a trip to the circus instead.


: He has a minor point (5.00 / 1) (#86)
by cawaltz on Sat Apr 17, 2010 at 06:36:29 PM EST

when we arming guerillas in countries where we do not like the leadership, we are aiding "terrorists" per se. One man's freedom fighter is another man's terrorist.
It's bit us in the backside on more than one occasion too.
I see this policy as another step in the wrong direction because it smacks of hypocrisy. There are times where our country actually has in the past and likely will in the future will be siding with people who fit the definition of terrorist. The biggest distinction is the acts of terrorism won't be committed against us or against our own interest, so we will be just fine with it.
Granted, the statement is on the larger issue of how we view terrorism but to some people that may be important when looking at incarcerating a person for a life span.

: Can't have an honest discussion based on... (none / 0) (#21)
by Yes2Truth on Sat Apr 17, 2010 at 11:52:14 AM EST

a false premise. Except maybe at the circus. Enjoy yourself, kiddo.

I don't either (none / 0) (#1)
by jbindc on Sat Apr 17, 2010 at 09:37:33 AM EST

Seems to me to be completely rational.

Hmm (none / 0) (#11)
by Kimberley on Sat Apr 17, 2010 at 11:07:39 AM EST

Correct me if I'm mistaken: these two are debating the desirability of a unicorn. Aren't they?

Does a politically viable animal such as Graham's attempting to describe even exist? In an planetary environment of perpetual warfare, can it come into being?

It's possible I'm just not bright enough to understand how illuminating this exchange really is.

I've got time to learn something today and I'm humble enough to be taught. But my walk away thought is, Even I can agree with Senator Graham that unicorns are awfully pretty. What we're going to do about that angry barnyard horse with a horn strapped to its head, running around goring everything that moves, is as yet undetermined.

This (none / 0) (#12)
by Maryb2004 on Sat Apr 17, 2010 at 11:10:43 AM EST

"When I look back at the '90s and the Tanzania, the embassy bombings, the bombing of the Cole, I think we, as a nation, should have realized that, at that point, we were at war. We should not have waited until September 11, 2001 to make that determination."

I disagree with. They may have needed to make some determination but it wasn't that we were at war.

And the fact that she thinks it is "easy" to agree with her boss on this alarms me. It is not even the fact that she comes to this conclusion but that she finds it "easy".

From this I draw the conclusion that she may very well find it "easy" to come to the conclusion I may also disagree with - that we are in a never ending "war". Maybe this is unfair of me but since she has left no record about WHY she thinks we were at war from that particular time (which I disagree with) there is no way for me to judge what she thinks the limits of that war are.

I understand that this was a congressional hearing and her prep would have taught her to volunteer nothing. But I have seen no other record by which to judge her.

Wait a sec . . . (5.00 / 2) (#13)
by Big Tent Democrat on Sat Apr 17, 2010 at 11:22:21 AM EST

That is what Graham said,not what Kagan said.

Kagan said we are at war now.

This is obviously true. In Afghanistan for instance.

But I even think it has value to view the terrorism issue through this prism. Here's why - war has rules - the Geneva Conventions for one source.

The problem was the Bush Administration insistence that NO RULES applied. That the President could do whatever he wanted to do.

BOTH Graham and Kagan rejected this view expressly.


Yes (5.00 / 3) (#23)
by squeaky on Sat Apr 17, 2010 at 12:09:42 PM EST

But isn't it a problem that it appears that the rules are only selectively applied? Obama is not lifting a finger to prosecute war crimes by BushCo, yet maintains that we can imprison those who seek revenge against blatant, and arrogant, US lawlessness.

I do not think that Obama can say OK, we are playing by the rules now, and it is a new game (war). Let bygones be bygones... It is the same game (war), and just because Obama says we are going to be honest brokers, it is hardly convincing to those who notice the hypocrisy of Obama sweeping the past under the rug.


It is very much a problem (none / 0) (#24)
by Big Tent Democrat on Sat Apr 17, 2010 at 12:11:40 PM EST

of Obama's creation.

At the least, a form of Truth Commission should have come forward.


Yeah (none / 0) (#25)
by squeaky on Sat Apr 17, 2010 at 12:22:18 PM EST

At the very least. Otherwise, he cannot escape the stain of being in alignment with BushCo policy despite the rhetoric about promising to adhere to international and US law.


That (5.00 / 1) (#28)
by jbindc on Sat Apr 17, 2010 at 12:28:07 PM EST

Is a political problem and not a constitutional problem. Maybe if we had a leader and Congress with spines, they would have said they didn't care about getting re-elected, but cared about doing what they felt was right, then things would be very different. Unfortunately, there aren't any out there.


Huh? (5.00 / 1) (#33)
by squeaky on Sat Apr 17, 2010 at 12:43:48 PM EST

It is both a constitutional problem a political problem. The two cannot be separated here. BushCo had lawyers working on interpreting the constitution so that he could maintain political power.

Bush interpreted the constitution and Obama is interpreting the constitution, for perceived political gain. Bush's political wager as to radically interpreting the constitution, blew up in his face and made it easy for the Democrats to be given the reigns. Obama is also making a political mistake in his decision to not shine a light on Bush's lawlessness is in violation of Article 2 section 5 of the constitution.


Huh? (none / 0) (#35)
by jbindc on Sat Apr 17, 2010 at 12:58:35 PM EST

There is no Article II, Section 5.


Huh Yourself (none / 0) (#39)
by squeaky on Sat Apr 17, 2010 at 01:18:11 PM EST

Article II Section 3 Clause 4, but you knew that...


: Just like I said (none / 0) (#44)
by jbindc on Sat Apr 17, 2010 at 01:41:34 PM EST

It's a political problem, unless of course, you are arguing that the POTUS must direct the AG to prosecute everytime a law is broken, which would be an unusual argument from you.
Notice I'm not saying Bush et al shouldn't be prosecuted. But Obama is making a political decision to not prosecute. If he is truly violating the Constitution, as you seem to be arguing, then you should be very vocal about impeaching him.

Yes, and then he asked her if she agreed (5.00 / 4) (#41)
by Maryb2004 on Sat Apr 17, 2010 at 01:32:11 PM EST

and she said "It's easy to agree with my boss in that circumstance."

Now maybe you think she was avoiding that question and only referring to the earlier statement. Or maybe you happen to know that Holder doesn't agree with that statement. But that was her direct answer and I took it as an agreement since she used the word agree.

Look, sure, she wants due process and all that. It sounds good. She wants rules. And that is good. And rejecting the Bush administration's insistence that no rules apply is very good. But it tells us nothing about what she thinks the rules should be. And the real question in all of this arises out of that statement made by Sen. Graham.

Are there special rules that apply when we are at war? If there are special rules that apply when we are at war, how do we know when we are at war? Who gets to decide? And how do we know when we are no longer at war?

With her broad view of presidential discretion ABSENT a statement from Congress - does she think the President gets to decide. Could President Clinton, in the 1990's, simply have decided to apply special wartime rules after the bombing of the Cole? Since terror is a tactic and not a state, when terror is still being used by somebody in the world against us 20 years from now are they subject to these special rules and not the US criminal justice system?

At the very least she did not verbally disagree with Graham that someone should have declared us in a state of war in the 1990's. So at best we have no idea what she thinks on that.

The rest of it - it was light on details about what such a system should look like and when and where it would be applied. Yes it is good that she thinks we should have a system.

Have we fallen so low that the mere fact that she thinks there should be a system is cause for applause? Shouldn't that be a bare minimum WE should require of ANYBODY who is nominated to the US Supreme Court?


Great comment - great questions (none / 0) (#50)
by Anne on Sat Apr 17, 2010 at 02:56:44 PM EST

that go to the heart of what bothers me; I wonder what the chances are that any of these kinds of questions will be asked of any nominee? Probably not quite as slim as the chances we would get an honest answer, would be my guess.


Well (none / 0) (#59)
by Big Tent Democrat on Sat Apr 17, 2010 at 04:29:37 PM EST

"Have we fallen so low that the mere fact that she thinks there should be a system is cause for applause?"

Some people, like Cass Sunstein for instance, said the opposite.

So yes, it is worth saying it is a good thing.

But certainly it is not worthy of boos, as I see many engaged in.

How about some fairness?


I'm all for fairness. (5.00 / 1) (#91)
by Maryb2004 on Sat Apr 17, 2010 at 07:51:00 PM EST

And I think it is useful that you are posting source documents that afford an opportunity for people to read and intelligently discuss. If they so choose. Or not.

But at some point in the last week or so you announced that you were going to support her. So I assume that your purpose in these posts is more than simply being fair to her but is in fact intended to support her.

Saying she is better than Cass Sunstein on this particular issue isn't much of a recommendation.


: FYI: Greenwald is advocating for Wood. (none / 0) (#92)
by oculus on Sat Apr 17, 2010 at 08:19:19 PM EST

Sometimes, (none / 0) (#81)
by christinep on Sat Apr 17, 2010 at 05:45:41 PM EST

it is case by case. I find this whole discussion quite interesting and provocative. All kinds of uncomfortable questions have been raised. Then...I recalled one judicial approach that doesn't exactly embrace sweeping pronouncements. The incremental, case-by-case approach has application in a number of instances. Justice Souter, as I recall, tended toward that approach; and, did Justice O'Connor for the most part. The advantages of limited judicial response are many in those areas with unknown pitfalls. For one thing, it allows for building a majority around the unique facts of a particular case. It doesn't dodge the ultimate issue if the ultimate issue isn't presented. Recognizing that the "right" side of the Court now tends toward ideological sweep, arguing for looking at the particular facts of each "terrorism" case could be more than helpful. Frankly, the reductio ad absurdum argument (what if and more what ifs) serves only to raise emotions and--from both sides--to stir up more fear. If we try to imagine all the horrible configurations/dilemmas that just might occur (as the reference ealier to a unicorn), we might do no more than convince ourselves that there is no resolution to any issue.


Ms. Kagan seemed to adopt (none / 0) (#29)
by oculus on Sat Apr 17, 2010 at 12:28:09 PM EST

what Sessions sd. She could have made sure she didn't--as she apparently only meant to agree with Holder's testimony we are at war now.


I disagree (none / 0) (#31)
by Big Tent Democrat on Sat Apr 17, 2010 at 12:31:45 PM EST

She adopted what HOLDER said, which is NOT what Graham said.


: Inartful. (none / 0) (#32)
by oculus on Sat Apr 17, 2010 at 12:37:37 PM EST

KAGAN: It's easy to agree with my boss in that circumstance.

: I see that now. I was confused by the (none / 0) (#38)
by masslib on Sat Apr 17, 2010 at 01:17:30 PM EST

phrasing of Graham's question, but I get it. His view is that we have been at war since the 1990's, not Holder and Kagan's view.
On indefinite detention of terrorists, I'm unsure. I mean, sure enemy combatants in Afghanistan, or Iraq, on the battlefield can be held indefinitely. I don't know about the notion that suspected terrorists should be held indefinitely because I don't understand where the lines are that makes one terrorist an enemy combatant and one a criminal terrorist.

Togetherness (none / 0) (#54)
by lentinel on Sat Apr 17, 2010 at 03:55:50 PM EST

As I said at the time, there is nothing Kagan said in her testimony that I disagree with.

And - there is nothing that Kagan said that Lindsey Graham disagreed with either. And there is nothing that Lindsey Graham said that Kagan disagreed with.

Smooth sailing.

: Smooth sailing. Or maybe not. (none / 0) (#57)
by oculus on Sat Apr 17, 2010 at 04:26:56 PM EST

Gender identity politics may enter into this.

: There's the type of siubstantive analysis (none / 0) (#58)
by Big Tent Democrat on Sat Apr 17, 2010 at 04:27:43 PM EST

I really enjoy.
Thanks for addressing the issues.
Sheesh.

My Solution To ANYONE Who (none / 0) (#65)
by seabos84 on Sat Apr 17, 2010 at 04:40:50 PM EST

Suggests or recommends or tries to implement any rule or law that can:

- get me locked up,
WITHOUT knowing the charges against me in open court,
WITHOUT knowing who my accusers are in open court,
WITHOUT knowing the evidence against me in open court,
WITHOUT the right to be promptly (24 hours) brought before a PUBLIC judge,
WITHOUT unbiased representation paid for by the community ...

how about we take the fascist @#$%&* out to the nearest supermax and lock them up for 5 years with NO charges, lawyer, day in court, speedy trial ... ??

WHAT is to debate, other than how many fascists can fit on the head of pin?

Didn't some people come up with rules against this stuff hundreds of years ago for very good reasons, like, NONE of us can trust ANYONE so we must have rules?

rmm.

Since no one has suggested that (none / 0) (#67)
by Big Tent Democrat on Sat Apr 17, 2010 at 04:44:09 PM EST

since the Bush Administration, I am not sure who you are arguing with.

If I seem impatient with the comments in this thread, let this comment be an example.

Perhaps the words due process and judicial review are unknown to most of you.

If so, then I suggest you have no business discussing this issue.


Is there any blog permitting comments (none / 0) (#68)
by oculus on Sat Apr 17, 2010 at 04:49:01 PM EST

which is not subject to irrelevant, uninformed comments?


Well (none / 0) (#69)
by Big Tent Democrat on Sat Apr 17, 2010 at 04:53:07 PM EST

When it comes to threads I am involved in here, I will complain loudly and do more if necessary.

Let me finish my point regarding the parent comment in this subthread - from the post:

"So America needs to get ready for this proposition that some people are going to be detained as enemy combatants, not criminals. And there will be a process to determine whether or not they should be let go, based on the view that we're at war, and it would be foolish to release somebody from captivity that's a committed warrior to our nation's destruction.

Now, the point we have to make with the world, would you agree, Dean Kagan, is that the determination that led to the fact that you're an enemy combatant has to be transparent?

KAGAN: It does, indeed.

GRAHAM: It has to have substantial due process.

GRAHAM: And it should have an independent judiciary involved in making that decision beyond the executive branch. Do you agree with that?

KAGAN: Absolutely."

Just so we can be clear what it is we are in fact discussing.


: Lots of knee-jerkism on this subject. (none / 0) (#71)
by oculus on Sat Apr 17, 2010 at 04:56:24 PM EST

Yes, Ms. Kagan and Mr. Sessions both agreed strenuous due process review is required before "indefinite detention."

It is quite simple - the MORE (none / 0) (#73)
by seabos84 on Sat Apr 17, 2010 at 05:12:02 PM EST

papers and tomes and essays and rules and regs,

THE LESS justice I'll get, period, end of story.

I can't afford a $200 / hr lawyer OR a $500 / hr lawyer OR skadden & arps...

You think I'm not qualified to "discuss" this? fine!

I think you are proving my point - the more complicated the rules, the less justice for us normal people.

rmm.


: No rules then (5.00 / 2) (#75)
by Big Tent Democrat on Sat Apr 17, 2010 at 05:17:42 PM EST

See how that works out for you.

This is ridiculous (none / 0) (#93)
by Alien Abductee on Sat Apr 17, 2010 at 08:46:39 PM EST

I think our nation didn't realize that we're at war when, in fact, we were.
When I look back at the '90s and the Tanzania, the embassy bombings, the bombing of the Cole, I think we, as a nation, should have realized that, at that point, we were at war. We should not have waited until September 11, 2001 to make that determination. Do you agree with that?

The fact that Kagan doesn't laugh in his face over that is a black mark against her character, in my view.

If the US is at war, with what state is it at war? Not Afghanistan - the Karzai government is a creation of the US. Not Iraq - the US stands shoulder to shoulder with the Iraqi government. Not Pakistan - the US gives billions in war aid and weaponry to the Pakistani government.

War, except for civil war, is conducted between states. The US is engaged in armed conflict, so treatment of prisoners is covered by the Geneva Conventions. But agreeing that the US is engaged in war is what opens the door to all the abuses like domestic spying and indefinite detention without trial. Accepting that it's a war instead of a matter of tracking down criminals and bringing them to justice in a lawful way opens the door to these absurd discussions of battlefields that are everywhere and nowhere, physical and non-physical, including in the hearts of Muslims everywhere.

That she goes along with this nonsense should be disqualifying. Sadly though, in the current state of the republic, no other candidate who could be seriously considered for nomination or confirmation would dare to say anything else.

: That's the problem I had too (none / 0) (#97)
by ruffian on Sat Apr 17, 2010 at 10:25:52 PM EST

The format and purpose of the 'interview' makes it nearly impossible for her to reject the premise and 'battlefield' metaphor, even if she wanted to. I don't get a sense of her own opinions. She didn't get much of a chance to add to her quick 'yes I agree' answers.
Your last paragraph says it all for me. I can only hope there are samples of her own thinking out there.

Has she said anything in her own (none / 0) (#96)
by ruffian on Sat Apr 17, 2010 at 10:19:38 PM EST

words? I'm gonna have to see how she thinks for herself rather than what she agrees with in a Senate hearing with Graham bloviating her Into submission. Otherwise it seems Obama might just as well nominate Graham. He's obviously given the issues a lot of thought, would be easily confirmed, and is very persuasive.

: That's part of the problem; (5.00 / 1) (#99)
by Anne on Sat Apr 17, 2010 at 11:02:44 PM EST

there isn't much to go on.
From Glenn:

One of the difficulties in assessing Kagan's judicial philosophy and view of the Constitution is that direct evidence is extremely sparse. That's not only because she's never been a judge, but also because (a) her academic career is surprisingly and disturbingly devoid of writings or speeches on most key legal and Constitutional controversies, and (b) she has spent the last year as Obama's Solicitor General, where (like any lawyer) she was obligated to defend the administration's policies regardless of whether she agreed with them. As Goldstein wrote at SCOTUSblog: "it seems entirely possible that Elena Kagan does not really have a fixed and uniform view of how to judge and to interpret the Constitution."
As I've previously documented and examine further below, the evidence that is available strongly suggests that a Kagan-for-Stevens substitution would move the Court to the Right in critical areas. But Kagan's lack of a real record on these vital questions, by itself, should cause progressives to oppose her nomination. That's true for two reasons:
His reasons follow, but they are too lengthy to quote, in full, here.
He makes a compelling case, in my opinion.

Propaganda for Obama regime (none / 0) (#100)
by Andreas on Sat Apr 17, 2010 at 11:06:06 PM EST

Yet another Talkleft-propaganda piece supporting the Obama regime. The difference between the Republicans and the Democrats really is marginal.

Yes, the US is at war: against the populations of Iraq and Afghanistan.