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Elena Kagan, a National Security Enigma, Has Embraced Executive Authority


Elana Kagan (Jay Mallin/ZUMApress.com)

So Solicitor General Elena Kagan will be President Obama’s second Supreme Court nominee. The emerging conventional wisdom is that Kagan, a rare nominee for the high court who hasn’t been a judge, is a very smart blank slate. On at least one category of issues that Kagan will face — the intersection of national security and law during a time of war — that conventional wisdom looks correct. But there’s a proxy for that set of issues, however inexact, that offers a few clues in advance of her confirmation hearings: Kagan’s deference to executive power.

[Security1] No one has chronicled Kagan’s embrace of the executive more assiduously than Glenn Greenwald, who’s appalled that Obama would pick someone with such a record. Given her relatively thin paper trail, one of the primary pieces of evidence for her perspective is her 2009 nomination hearing for the solicitor generalship, in which she expressed eagerness to bless Sen. Lindsey Graham’s (R-S.C.) perspective that the president possesses broad wartime authorities to detain enemy combatants. (“No daylight” was how The New York Times assessed the exchange between the two.)

That assent appears to flow from a broader perspective. Charlie Savage of the Times found this weekend that Kagan, the dean of Harvard Law School from 2003 to 2009, was the tardiest and least forceful of Obama’s Supreme Court shortlist to criticize the Bush administration’s expansive assertions of executive wartime powers. Savage explored a 2001 law review article she penned defending the Clinton administration’s executive unilateralism:

In the article, Ms. Kagan argued that even if Congress has given the authority to make a regulatory decision to an agency, the president has the power to control that decision unless a statute explicitly forbids him from interfering. She wrote that it was “ironic” that “self-professed conservatives” were associated with calling for stronger executive power in recent decades because a more robust presidency could achieve “progressive goals.”

Still, her defenders note that she also wrote, “If Congress, in a particular statute, has stated its intent with respect to presidential involvement, then that is the end of the matter.” And in 2007, she gave a speech celebrating the actions of Bush lawyers who battled the White House over the legality of the warrantless surveillance program.

It’s worth noting that she hired the most prominent of them: Jack Goldsmith, the former chief of the Office of Legal Counsel, who gained prestige by attempting to roll back Bush’s excesses on torture and surveillance. Then again, it’s also worth noting that Goldsmith advocates creating a permanent national security court to entrench a “a system of non-criminal military detention for enemy terrorists who for many reasons are difficult to prosecute and convict by trial.”

It would be foolish to assume that Kagan and Goldsmith believe the same thing in this regard, absent an explicit statement on a national security court from the nominee. But “non-criminal military detention for enemy terrorists” will very likely be among the first things that Kagan would confront on the high court. Graham and Attorney General Eric Holder pledged last month to work on a system of indefinite detention without trial for a cohort of current and future terrorism detainees. Just yesterday, Holder went further, vowing to expand the Miranda warning’s “emergency” exemption clause. Beyond that, the military commissions that the administration and Congress revised last year are still untested for terrorism prosecutions, plagued by belated rules of procedure and in the midst of a potentially defining challenge about the admissibility of coerced evidence. Two senior administration officials responsible for the new scope of the commissions expressed concern last year that the process rights allowed by the commissions may not withstand judicial scrutiny.

More generally, the Obama administration may not be claiming inherent executive authority for its expansive national security agenda, as its predecessor did– it prefers to locate that power within a brief and rushed post-9/11 statement of congressional intent — but among its claims are that American citizens whom it declares are terrorist operatives can be killed without any form of due process.

In fairness, lots of judges and legal scholars, even on the left, believe that presidential authority is at its greatest during wartime. But as Greenwald has pointed out most vigorously, the most important dissenter from that perspective is the justice Kagan may replace: John Paul Stevens, who led the charge to roll back the expansive detention authority the Bush administration asserted.

Senior Obama aides have said they seek to create a “sustainable approach” on questions like terrorism detention authority that can claim a consensus within Congress and the courts that can last beyond the Obama administration’s term in office. That’s why the administration has disappointed civil libertarians on the issue so greatly. By nominating Elena Kagan to the Supreme Court, Obama stands a better chance of winning judicial affirmation to whatever system he’s building with Graham. If Kagan doesn’t look like a new Stevens, it may be that the second coming of John Paul Stevens would stand sharply in the way of Obama’s desired “sustainable approach” to the intersection of national security and the law.

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