Nina Totenberg points to a 2005 letter that arguably holds more weight in revealing Elena Kagan's views of executive power than her brief exchange with Sen. Lindsey Graham during her confirmation hearing:
In a 2005 letter to Sen. Patrick Leahy, Kagan and three other deans of major American law schools, wrote to oppose legislation proposed by Sen. Lindsey Graham (R-SC) to strip the courts of the power to review the detention practices, treatment and adjudications of guilt and punishment for detainees at Guantanamo Bay, Cuba.
"To put this most pointedly," the letter said, "were the Graham amendment to become law, a person suspected of being a member of al-Qaeda could be arrested, transferred to Guantanamo, detained indefinitely ... subjected to inhumane treatment, tried before a military commission and sentenced to death without any express authorization from Congress and without review by any independent federal court. The American form of government was established precisely to prevent this kind of unreviewable exercise of power over the lives of individuals. "
"When dictatorships have passed" similar laws, said the deans, "our government has rightly challenged such acts as fundamentally lawless. The same standard should apply to our own government."
The letter continues:
We cannot imagine a more inappropriate moment to remove scrutiny of Executive Branch treatment of noncitizen detainees. We are all aware of serious and disturbing reports of secret overseas prisons, extraordinary renditions, and the abuse of prisoners in Guantanamo, Iraq and Afghanistan. The Graham Amendment will simply reinforce the public perception that Congress approves Executive Branch decisions to act beyond the reach of law. As such, it undermines two core elements of the rule of law: congressionally sanctioned rules that limit and guide the exercise of Executive power and judicial review to ensure that those rules have in fact been honored.
There are only four signatories, so it's not as though Kagan would have gone unnoticed in a sea of other names. Stanford Law School Dean Larry Kramer, Dean of the Georgetown University Law Center T. Alexander Aleinikoff, and then-Yale Law School Dean Harold Koh.
As Tom Goldstein has noted, when Kagan asserted the executive's authority to detain al-Qaeda members without trial under the laws of war, she was stating what her prospective boss had stated earlier. Even prominent Bush critic Dawn Johnsen came to the same conclusion when asked a similar question during her hearing. Kagan signing onto this criticism of the Graham amendment suggests far more skepticism of executive power in the realm of foreign policy than I initially assumed -- it puts her, in 2005 and prior to Hamdan, on the same side of the detainee question as the lawyers at the Justice Department who were smeared by Liz Cheney and Bill Kristol.
That said, Kagan's record is mostly blank. This letter is not a record. To borrow Goldstein's metaphor, this is a thin reed to hang an assessment of how a Justice Kagan might rule on such issues in the future. The fact that Kagan avoided commenting on many of the most controversial issues of her day makes her a gamble, although I suppose it means something that -- given her relative silence -- she chose to comment on this one. At the same time, one assumes that if these kinds of issues really did matter, she would have spoken up far more than she did.
You also gotta wonder ... given that much of the liberal criticism of Kagan has centered around this issue, why wasn't the White House passing this letter around?
-- A. Serwer
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