Kagan On Preventive Detention
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?
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?
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
|< The Regulatory State, The Unitary Executive And Civil Libertarians | Saturday Night Open Thread >|