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Indefinite Detention-Lite: Et Tu, Elena Kagan?

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.

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