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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.

By Eva Rodriguez  | June 29, 2010; 4:45 PM ET
Categories:  Rodriguez  | Tags:  Eva Rodriguez  
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Next: Why not replace Elena Kagan with Paul the octopus?

Comments

Kagan is as hollow as Obama........


" Anger grows along the Gulf Coast at the Obama administration’s pathetic response to the largest oil spill in U.S. history."The washPo feels this to be an inconvenient news story.......

Obama's Oily Katrina got the bump....but still can pump.

America's Recovery begins when the democrats fall this Fall

Posted by: georgedixon1 | June 30, 2010 8:52 AM | Report abuse

"Most of the left have been miserably silent"...WTF! What a ridiculous and convoluted generalization. What exactly are you talking about? Limitation on presidential powers? Most of the "left" you so glibbly characterize are for limitations on presidential power after the excesses of Bush/Cheney. You have no idea what you are talking about and you have expressed your ignorance admirably.

Posted by: joebanks | June 30, 2010 9:53 AM | Report abuse

How could anyone give Graham any credibility when he say he's concerned about her "growing up in a liberal household" which he "will get back to later."

The ghost of Joe McCarthy lives channeled by the Senator from North Carolina who will reinstate hearings of the Un-American Activities Committee soon.

Posted by: areyousaying | June 30, 2010 10:20 AM | Report abuse

"The ghost of Joe McCarthy lives channeled by the Senator from North Carolina who will reinstate hearings of the Un-American Activities Committee soon." Posted by: areyousaying
======================
areyousaying, Graham's from SOUTH Carolina. The balance of your unbalanced post shows a similar degree of informedness.

Posted by: OttoDog | June 30, 2010 11:02 AM | Report abuse

Posted by: georgedixon1
" Anger grows along the Gulf Coast at the Obama administration’s pathetic response to the largest oil spill in U.S. history."The washPo feels this to be an inconvenient news story.......

Obama's Oily Katrina got the bump....but still can pump.
--------------------------------
Well since the scientists at BP and all those people in MMS that were put there by Bush still haven't been able to come up with a mechanism to stop it, we are really getting tired of readsing "Day XXX, still not fixed". If there is no new news, why write another article about the same thing.

Posted by: georgedixon1 America's Recovery begins when the democrats fall this Fall"
---------------------------------
Oh yes, more DE-regulation and less government involvement is just what these industries need. NOT


Posted by: schnauzer2 | June 30, 2010 11:23 AM | Report abuse

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