Indefinite Detention-Lite: Et Tu, Elena Kagan?

By
Wednesday, February 11, 2009 at 11:22 am

Last week, CIA Director-designate appeared to argue that certain Al Qaeda detainees were too dangerous to stand trial — something that threw civil libertarians for a loop, given the recent executive orders from the Obama administration ordering the closure of Guantanamo Bay, the CIA’s secret prisons and a thorough review of future detention policy. Now it looks like Panetta has company. At her confirmation hearing yesterday, Elena Kagan, the administration’s nominee to be solicitor general, made a similar point, according to the Los Angeles Times:

Harvard Law Dean Elena Kagan, President Obama’s choice to represent his administration before the Supreme Court, told a key Republican senator Tuesday that she believed the government could hold suspected terrorists without trial as war prisoners.

Apparently, this came in response to an exchange with Sen. Lindsay Graham (R-S.C.), in which Graham asked Kagan to react to a quote from Attorney General Eric Holder’s confirmation last month that our own intrepid Kate Klonick noted:

I don’t think there’s any question that we are at war, and I think, to be honest, I think our nation didn’t realize that we were at war when in fact we were.  When I look back at the 90s and Tanzania 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 11th, 2001 to make that determination.

As Kate wrote, the implications of the statement are somewhat ambiguous. Also ambiguous is what Kagan meant: do battlefield captures in a war without a clear endpoint equate to total military discretion over the length of a person’s detention? And if that isn’t enough ambiguity, recall that Kagan, as solicitor general, won’t be a formal part of a the forthcoming administration review on detention policy. Still, it appears like it’s not just Panetta who thinks there’s something to the idea of a class of detainees who won’t face trial.

Follow Spencer Ackerman on Twitter


Comments

21 Comments

Just Me
Comment posted February 11, 2009 @ 11:55 am

Surprise!

Are you surprised? You shouldn't be. There will be much more of this to come.


Chris
Comment posted February 11, 2009 @ 12:02 pm

“Hold terrorism suspects without trial” is ambiguous?
The only thing that isn't clear about that statement is how you can claim it is so with a straight face. Perhaps the one occasion out of thousands from the previous 8 Obama-free years when you found the same statement just as ambiguous would be illustrative. Did that happen, even once?


JL
Comment posted February 11, 2009 @ 12:22 pm

Maybe it can be determined to a certain degree of certainty that “certain Al Qaeda detainees [are] too dangerous to stand trial” ! And that now that the new guys in town are privy to certain information which does not need to be made public for (real!) reasons of safety and security, it has become clear to them that this is not an ideological pissing match. It is a war. Who would have thought?


SamIam
Comment posted February 11, 2009 @ 12:30 pm

Probably the first good thing to come out of this administration as long as it doesn't morph into Obama holding American citizens under some newly defined standard that covers political opponents. There is plenty of time to consolidate power in the coming years using modified Hugo Chavez strategies.


YeahChauncey!
Comment posted February 11, 2009 @ 12:54 pm

The uproar about Guantanimo and other issues of the terrorist rights movement was always a ruse to fool the rubes. The problem was that while Hillary (the wife of an avid practitioner of rendition) for instance understood what was going on, Obama came along and actually believed the rhetoric. Whether because he is a fool, sympathetic to the other side or naive is open to debate.

Now we have a completely untenable situation where we can't have military commissions, we can't have civilian trials, we can't repatriate any of these people and we can't let them go. The only thing that has occurred because of all of the faux moral outrage is that we must not take any more prisoners on the battlefield, either by shooting them instead or seeing to it that our allies take them. Intelligence intercepts indicate that the jihadis now understand this and have no choice but to fight to the death because the Iraqis have no qualms about how they are treated once in custody. This has and will cost us both lives and intelligence.

Palin nailed it when she said Obama would be worrying about whether the prisoners we take were read their rights. Obama is not a serious thinker on any subject. All of this was perfectly foreseeable and anyone who had given the subject even a moment of serious, rational thought would have seen it coming. That Obama alone did not, out of all of the major candidates in the last race, says all we need to know about the Chauncey Gardener who now inhabits the Whitehouse.

Obama will have to walk back from a lot more positions he took on the whole terrorist rights issue before all is said and done. The single shred of hope I have is how haggard he looked after being in office long enough to have received an actual intelligence briefing. This president should have come with training wheels.


TiredOfTheCrap
Comment posted February 11, 2009 @ 1:00 pm

In other wars, combatants out of uniform would have been shot as spies. Even if their intent was something more strategic than to murder schoolchildren.


Steve
Comment posted February 11, 2009 @ 1:16 pm

“As Kate wrote, the implications of the statement are somewhat ambiguous. Also ambiguous is what Kagan meant: do battlefield captures in a war without a clear endpoint equate to total military discretion over the length of a person’s detention?”

There isn't any ambiguity at all. Holder said the U.S. is at war. This is what conservatives have been saying for more than seven years. I'm glad Holder actually knows when it began.

Here's the endpoint: Osama bin Laden and Ayman al-Zawahiri die, and every other Al Qaeda member needs to surrender unconditionally. Remaining higher-ups should then stand trial for war crimes against the U.S., but not in international court (military commissions would be the best approach).

An unambiguous endpoint.

Hope I was some help.


Instapundit » Blog Archive » HOPE AND CHANGE! Elena Kagan Says Government Can Indefinitely Detain Terrorism Suspects. “Because …
Pingback posted February 11, 2009 @ 2:34 pm

[...] Et Tu, Elena Kagan. Plus, hoping for some interesting commentary from the [...]


freedetainees.org » Surprise! Kagan Agrees with the Supreme Court
Pingback posted February 11, 2009 @ 3:26 pm

[...] up on Spencer’s post, The Los Angeles Times today makes much of the fact that Solicitor General nominee Elena Kagan [...]


lorraine beliveau
Comment posted February 11, 2009 @ 10:24 pm

we are at war and have been. to try these men in federal or civil court is nothing more than a get out of jail card. they should stay in gitmo and be tried there -the system works..these are military combatants gathered on the battlefields who have taken american lives–they should be tried and treated as pow's it seems to me “detainees have too many rights and privilages. let us not forget who these men are ,what they have done and why they are there.there should be a strong message that you cannot kill americans or drive planes into our buildings.we should not take a weak position.


lorraine beliveau
Comment posted February 12, 2009 @ 6:24 am

we are at war and have been. to try these men in federal or civil court is nothing more than a get out of jail card. they should stay in gitmo and be tried there -the system works..these are military combatants gathered on the battlefields who have taken american lives–they should be tried and treated as pow's it seems to me “detainees have too many rights and privilages. let us not forget who these men are ,what they have done and why they are there.there should be a strong message that you cannot kill americans or drive planes into our buildings.we should not take a weak position.


Obama, Irony and the Coup | The Anchoress
Pingback posted February 17, 2009 @ 8:22 pm

[...] Siggy: The Obama vision of a conforming America Detentions Deschmentions: if Obama does it it’s all good VDH: The Coming Storm Ace: Obama’s misleading spendulus web site Does Defending Western [...]


Obama’s New Supreme Court Nominee « Light Sound Dimension
Pingback posted March 26, 2010 @ 11:45 am

[...] General Elena Kagan — has a record that is almost as bad as Sunstein’s when it comes to executive power abuses, civil liberties, and “War on Terror” radicalism.  Unlike the Sotomayor-for-Souter [...]


March 26, 2010 « Quis Custodiet Ipsos Custodes?
Pingback posted March 26, 2010 @ 5:05 pm

[...] General Elena Kagan — has a record that is almost as bad as Sunstein’s when it comes to executive power abuses, civil liberties, and “War on Terror” radicalism.  Unlike the Sotomayor-for-Souter [...]


Who is Elena Kagan, apart from Obama’s likely nominee? | Liberty Pundits dot net
Pingback posted April 9, 2010 @ 6:06 pm

[...] General Elena Kagan — has a record that is almost as bad as Sunstein’s when it comes to executive power abuses, civil liberties, and “War on Terror” radicalism.  Unlike the Sotomayor-for-Souter [...]


Justice Stevens « The Reasoned Review
Pingback posted April 10, 2010 @ 1:51 pm

[...] the power to detain “terror suspects” indefinitely. According to the LA Times (via the Washington Independent), Ms. Kagan has explicitly stated that the President can hold [...]


Kevin MacDonald: Hype for Elena Kagan—Round Two « The Occidental Observer Blog
Pingback posted April 12, 2010 @ 11:58 am

[...] the radical expansion of executive power. Kagan has been criticized by civil libertarians for her expansive stance on detainee [...]


The Nominee: Elena Kagin « Chris Weigl's Blog
Pingback posted May 10, 2010 @ 2:11 am

[...] the radical expansion of executive power. Kagan has been criticized by civil libertarians for her expansive stance on detainee [...]


The horrible prospect of Supreme Court Justice Cass Sunstein
Pingback posted October 6, 2010 @ 8:36 pm

[...] General Elena Kagan — has a record that is almost as bad as Sunstein’s when it comes to executive power abuses, civil liberties, and “War on Terror” radicalism.  Unlike the [...]


Kevin MacDonald: Hype for Elena Kagan—Round Two | The Occidental Observer - White Identity, Interests, and Culture
Pingback posted January 16, 2011 @ 4:20 pm

[...] the radical expansion of executive power. Kagan has been criticized by civil libertarians for her expansive stance on detainee [...]


796688
Comment posted September 7, 2011 @ 12:53 pm

796688 beers on the wall. sck was here


RSS feed for comments on this post.

Sorry, the comment form is closed at this time.