Elena Kagan: Anyone suspected of helping al Qaeda eligible for indefinite detention without a trial

During her confirmation hearing last week, Elena Kagan, the nominee for solicitor general, said that someone suspected of helping finance Al Qaeda should be subject to battlefield law — indefinite detention without a trial — even if he were captured in a place like the Philippines rather than in a physical battle zone.

Ms. Kagan’s support for an elastic interpretation of the “battlefield” amplified remarks that Attorney General Eric H. Holder Jr. made at his own confirmation hearing. And it dovetailed with a core Bush position. Civil liberties groups argue that people captured away from combat zones should go to prison only after trials.

http://www.nytimes.com/2009/02/18/us/politics/18policy.html?_r=2

:hi:

I mean, I've come across some seriously Full-o-shit posters in my time here, but no one so onerous I've felt compelled to use that function.

Okay, maybe a few that onerous (and countless of "her" numerous sockpuppets, to boot) but.. as a matter of principle, I just don't do it.

Also, as a matter of practicality- so I don't end up in the thread going "what did they say?" :shrug:

They have me on ignore too, so they won't see this post either :P

by "some aim to distort", which was clearly directed at me. Thank you.

As to the ignore function, especially homophobic posters go on my ignore list. I don't listenb to hem in real life and I certainly won't here! :)

I really don't know what you think exists in the link you posted that makes Bluebear's post incorrect, although I will thank you for posting it. It was an interesting read.

View the video I linked to downthread. She said exactly what Blue says she did, and then some.

making it appear that we are going to start sweeping up anyone who supports OBL and detain them.

That is creative use of the language and deserves an award.

..."under traditional military law."

"The War on Terror" isn't a traditional war because it will never end.

Elena Kagan was speaking specifically about Al Qaeda.

If you can declare the entire globe a combat zone, then what protections do people have?

It's beyond stupid to claim if you're innocent then you have nothing to worry about. It's insufferably naive to think a case of mistaken identity couldn't lead to deadly consequences. It's just plain delusional to believe that abuses won't occur. (because they have already occurred due to the 'global war on terror')

Bush did this. Snatching up people outside the "combat" zones of Afghanistan and Iraq and shipping them to Afghanistan (and in some cases Iraq) and detaining them at Bagram. Bush extended battlefield law beyond the actual battlefield...and that is not acceptable.

:scared:

And I still don't support such thinking.

A legitimate capture within an actual war zone is one thing. Then people can be held until the end of hostilities. But when does the
- global- "war on terror" end exactly? How many more years? If you say "until the end of hostilities"...but you're engaged in a conflict that has been labeled "global" and we're told may take many years - if ever....well, that's more than a little disturbing.

If a person understands that an act of terrorism can happen anywhere or at anytime, then it never ends does it?

Then people snatched up are held until they die...without charge, without a trial. So how do we know they're guilty of anything? Because government tells us so?

Does anyone have any idea how crowded such a prison would get under such circumstances?...Because terrorism isn't going away...so are we in a perpetual state of war? Is that acceptable to others?

Should be interesting to hear her expand on these views in the upcoming hearings....

Which we can predict still won't translate into very many (R) votes.

to your narrative.

See reply 1. This is a complete distortion.

A lot of interesting info there, but I saw no specific refutation of the statement in the OP. In fact, I went and reviewed the video of the full question and answer session between Lindsay Graham and Elena Kagan, just to refresh my memory, and unless I misremember some portion of the OP (I will reread it again after posting this), she said exactly what the OP says she did. To me this is very troubling because she agreed that, at the discretion of any military officer, and one assumes others as directed by the POTUS, literally ANYONE ANYWHERE can be declared an "enemy" in this "war" and held indefinitely without charge or trial. A "war" which by the way Mr. Graham stated was without end, and one which Ms. Kagan declared we were engaged in even before the matter became obvious or declared, presumably following 9/11/2001.

This is a completely unacceptable legal position to take to me. It places ultimate power within the hands of the President of the United States, without review or oversight. Power that reaches around the globe, and could affect anyone, no matter their location or nationality. If Bush tried to claim power beyond this when it comes to detainees I don't know what it was. Ms. Kagan gave us a de facto defense of our prison at Gitmo and all that was done there, not to mention less well-known facilities throughout the world.

As a rough paraphrase, Graham said that in traditional conflicts (with a determinite ending), a military officer can decide that someone is an enemy and the country can imprison that enemy for the duration of the conflict. That is true (for normal wars that end) and has been true in our country since the Revolutionary war.

However, Graham SPECIFICALLY said that because this war is without end, there must be more due process in making that determination. This was before Kagan's response. Immediately after Kagan's response, Graham fleshed out exactly what he meant by increased due process. He said that in this situation, there must be an INDEPENDENT JUDICIARY that approves of one's status as an enemy combatent. Kagan then said that was absolutely true.

Kagan did nothing more than say "this is indeed the law" to a question that was indeed the law, without dispute, throughout our history. This is why Dawn Johnson agreed with Kagan. That's right, the Dawn Johnson who's views on Bush's interrogation techniques and executive power were so far to the left that she couldn't get confirmed. Dawn Johnson agreed with Kagan. For wars with ends, there is not and has never been judicial review of the factual determination of a prisoner of war or enemy combattent's status. But for wars without ends, there must be (under US Supreme Court decisions) judicial review of such factual determinations.

He said the Geneva Conventions called for an independent neutral decision maker. He did not offer that as his own opinion and quickly offered the caveat that he supported "giving more due process" without detailing what form that due process might take, as it was ancillary to his point. The point he was trying to make was that people detained in such a fashion are NOT due the rights that accused criminals receive under criminal law, and may in fact be detained indefinitely due to their status as war detainees, subject of course to whatever "due process" he might be willing to support.

Further, Kagan did not say simply "that is the law". She agreed that it "makes sense" AND further that it is the law.

Look, the point of all this cannot be lost on Ms. Kagan. When are we at war? Whenever the POTUS says so. Like now apparently, and some ill-defined time period before 9-11 even took place though as I recall the Cole bombing was mentioned in this regard. Who are we at war with? Everyone who we believe has committed a terrorist act or is planning or even contemplating one. How do we know they are doing that? Because we say so. Can you prove it? Sure, but it's classified and you don't have clearance. Nor does most of Congress apparently. Besides, we don't need to prove it. Why not? We are at war. And round and round we go. It's a recipe for abuses of human rights, and it doesn't stop being so because we suddenly have a Democratic president instead of a Republican one.

GRAHAM: Now, the point we have to make with the world, would you agree, Dean Kagan, is that the determination that led to the fact that you're an enemy combatant has to be transparent?

KAGAN: It does, indeed.

GRAHAM: It has to have substantial due process.

KAGAN: It does, indeed.

GRAHAM: And it should have an independent judiciary involved in making that decision beyond the executive branch. Do you agree with that?

KAGAN: Absolutely.

GRAHAM: So we can go tell the world that this person is being held off the battlefield, not because one person says so, but because there's a process that led to that determination where you have an independent judiciary involved. Do you think that's important for the nation to make sure we have that kind of process?

KAGAN: I do, Senator.


--------------------------

So Kagan (and Graham for that matter) clearly indicate that in the current situation, an independent judiciary must be involved. So a President cannot just declare anyone an enemy combatant without court approval.

You seem to be arguing that independent judiciary involvement is not enough -- you demand a full judicial trial for any non-citizen enemy combatant captured abroad (not some lesser form of judicial review). That is a perfectly legitimate view. Let's just be clear though -- that view is not held by a SINGLE Supreme Court justice. Not Stevens, not Ginsberg -- nobody on the court. So while you may disagree with Kagan about whether a full trial is always required for non-citizen enemy combatants, you are also disagreeing with the justice that Kagan is replacing, every other justice, and even Dawn Johnsen.

I don't have any particular narrative here- though I do have independent principles, and some of the views expressed on these issues- both in this OP and elsewhere seem to run contrary to those principles.

I'd like to hear the nominee explain them further.

Others would like to sweep it all under the rug, because their fearless leader chose her- and so she must be "good."

For conventional wars with an ending point, a military officer makes the factual decision of who is a prisoner of war/enemy combatent and who isn't. This has been the law of the land since the Revolutionary war, without dispute.

However, for wars without a determinate ending point, an independent judiciary must approve of such a status determination.

Kagan was essentially asked if the above two paragraphs were accurate statements of the law. She said they were, as the above two paragraphs are a correct statement of the law, and all 9 current supreme court justices (along with Dawn Johnson, one of the most strident legal voices against executive power) agree.

You could disagree with all 9 current Supreme Court Justices, and Dawn Johnson and others. But Kagan was not even asked whether or not she agreed. She was asked what the current law was. And she was accurate.

If Kagan were to personally disagree with the constitutionality of this current law, she would again be disagreeing with each of the 9 Supreme Court justices. The conservatives want minimal due process, and the liberals on the court want more expansive due process, but NO justice said that enemy combatants captured abroad all get a full trial. But whether or not Kagan agrees was not Graham's question.

evidently there is a wealth of official 'refutation' already prepared and displayed here ;)

http://www.youtube.com/watch?v=6WrkINWb8iw

There seems to me to actually be more in here to be troubled by than just what Bluebear posted.

But thank you for trying to add some information, tk, I really appreciate it.

Two and half minutes of Grahams ridiculous meanderings was too much to bear....I can't make it to her answers

his simple notions are complex idea that have never been thought about (or written into law). Folks, Graham is a fucking idiot. He is trying to make some kind of message to potential enemies...replace commies with whatever he says and it all makes sense. Cold war, fake wars, doesn't matter to a Repuke they can't even understand anything beyond 'us' vs 'them'. What she says makes total sense and we've been doing forever, again no point made here...just that Graham is an idiot that doesn't understand geo-political events very good much less well.