Kagan on presidential power and the war on terrorism
If there was any question about Elena Kagan's conservative leanings on matters of national security, that doubt was put to rest in an exchange with Sen. Lindsey Graham (R-S.C.).
During her half-hour question-and-answer period with the South Carolina Republican, Kagan walked through a discussion about war powers, indefinite detention, presidential powers and the right -- or lack thereof -- of certain detainees to challenge their incarceration in federal court. Kagan -- just as she did under questioning by Graham during her confirmation hearing for solicitor general -- acknowledged that the United States is at war and that the laws of war give the president the authority to detain enemy combatants off of the battlefield until the end of hostilities. She went so far as to say she personally signed a brief in a court of appeals case -- a rarity -- because she thought the interests of the United States were so strong that it demanded her personal involvement. That case involved the administration's vigorous objection to allowing a handful of detainees held at Bagram Air Force Base to challenge their detentions in federal court, even though they had been captured outside of Afghanistan and transported into that country's Bagram air base.
Yet Kagan came very close to acknowledging that the president's powers to continue to hold detainees without trial may have limits. In particular, she cited Supreme Court precedent holding that such detentions may become suspect if the current conflict continues to drag on -- distinguishing it from conventional conflicts where there is a clear end to hostilities and which serve as the basis for law of war principles. She did not take Graham's bait about the need for the executive and Congress to work together to craft a legal framework to ensure that the president has the legal means to hold those too dangerous to release but not likely to be tried. But she reiterated her earlier assertion, pegged to different Supreme Court precedent, that the president's powers are at their zenith when he acts in accordance with congressional mandates.
Graham was on target when he suggested that Democratic supporters and Republican critics should make themselves acquainted with her work in the national security arena. Indeed, most on the left have been miserably silent on positions taken by Kagan that, if espoused by a Republican nominee, would have drawn howls of protest.
| June 29, 2010; 4:45 PM ET
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