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Surprise! Kagan Agrees with the Supreme Court

Following up on Spencer’s post, The Los Angeles Times today makes much of the fact that Solicitor General nominee Elena Kagan Tuesday told senators that she believes that “enemy combatants” can be detained without criminal charge or trial.

Well, as much as civil liberties advocates might prefer that the new administration choose not to do that, Kagan could hardly have disputed that the United States has that right. After all, the Supreme Court ruled that it does, in the landmark case Hamdi v. Rumsfeld.

In that case, relatives of Hamdi — a U.S. citizen who allegedly took up with the Taliban in Afghanistan — filed a habeas corpus petition challenging the U.S. government’s right to hold him indefinitely. But the Supreme Court’s response was clear:

The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who “engaged in an armed conflict against the United States.” If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of “necessary and appropriate force,” and therefore are authorized by the AUMF.

The AUMF is the “Authorization for Use of Military Force” that Congress passed a week after September 11, which gave the president the power to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks” or “harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

That’s pretty broad. And in Hamdi, the high court ruled that pursuant to the laws of war, the United States may detain those people “for the duration of these hostilities.” It added, however, that those detainees have the right to meaningfully challenge their designation as an enemy combatant before an impartial adjudicator.

For now, that pretty much answers the legal question of detention.

Of course, Congress could amend that law, or President Obama could declare that hostilities are over, which would foreclose the government’s ability to pick up suspects around the world and imprison them indefinitely. But given Obama’s stated intentions to beef up U.S. forces in Afghanistan rather than withdraw them, he’s not likely to declare that war over anytime soon.

For better or worse, then, Elena Kagan solicitor general will have little say over the matter. (Unless, of course, she ends up on the Supreme Court one day.)

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