In response to my older post, Glenn Greenwald e-mails me a link to the comments section on his blog where he addresses the convergence of Dawn Johnsen and Elena Kagan on questions of indefinite detention, which Tom Goldstein used to defend Kagan against criticisms that she leans right on questions of executive power:
Everyone agrees -- including me -- that people captured on an actual battlefield can be held as POWs. That's all Hamdi said -- in fact, it explicitly confined itself to people captured in a war zone in Afghanistan -- and it's all Johnsen said (and because that was a U.S. citizen, basic due process was required).
What made Kagan's comments so disturbing is that she understands "battlefield" to be "anywhere in the world where we capture someone," which means that anyone can be held indefinitely as an "enemy combatant" no matter how far away they are from a real "battlefield." Johnsen never endorsed any such thing, nor did Hamdi.
Well, no, Johnsen didn't say that, but it's implicit in her answer. In his criticism of Greenwald, Goldstein links to the question Sen. Jeff Sessions asked Johnsen:
At her confirmation hearing, Solicitor General nominee Elena Kagan said that under military law there is no requirement to let captured enemies go back to the war. Do you agree?
Johnsen's answer was:
Answer: Yes, I do agree with Dean Kagan’s statement that under traditional military law, enemy combatants may be detained for the duration of the conflict. That is what the Supreme Court said as well in Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
Hatch hasn't changed the premise from the question Kagan was asked by Sen. Lindsey Graham, which considered whether a hypothetical al-Qaeda financier from the Philippines could be detained indefinitely under military law (assuming they've lost their habeas petition, I'm guessing, based on Graham's comments). I don't know how it's possible to assume that Kagan is saying anything different from Johnsen. Both Sessions and Graham were somewhat sloppy in the way they asked their questions, so there might be some daylight between the two of them here, or in their personal opinions of what the law should be, but it's impossible to know what that is. Maybe Johnsen didn't remember the premise of the question, and maybe her citation of Hamdi indicates she actually does feel differently from Kagan about what the law says, but that seems unlikely.
At any rate, unlike Kagan, Johnsen has made her position on other questions of executive power quite clear, and I think that Greenwald is right to be suspicious of Kagan's record. But Kagan's exchange with Graham doesn't really locate her personal beliefs on the issue of indefinite detention. She appears to, like Johnsen, have merely been stating the law.
On a somewhat related note, I would recommend reading Greenwald's evaluation of Diane Wood as a potential nominee to the Supreme Court. Ironically, given their clashes over the Sonia Sotomayor nomination, Jeffrey Rosen seems to think as highly of her as Greenwald does.
-- A. Serwer
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(If there's one thing we know about comment trolls, it's that they're lazy)