Elena Kagan Criticized 'Fundamentally Lawless' Military Tribunal System In 2005

05/10/2010 01:34 pm ET | Updated May 25, 2011
  • Sam Stein Senior Politics Editor, The Huffington Post

The trench-warfare that usually accompanies a Supreme Court nomination process appeared in limbo with Elena Kagan: a Democratic nominee, to be sure, but one who seemingly held positions anathema to the progressive community. How, after all, could critics of the Bush administration's theory of executive governance support a Court nominee who has written in support of the unitary executive?

In the immediate aftermath of Kagan's official nomination, however, the potential for that intra-party friction has subsided somewhat. Democrats and Republicans have instinctively taken up the cause of support and opposition -- respectively -- though with noticeable exceptions. And information has emerged that casts a new light on Kagan's legal theories, wiping away some of the perception that she's soft on matters of civil liberties.

As news broke Sunday evening of her impending nomination, word began spreading of a little-noticed letter Kagan had co-signed in 2005. The letter laid out major concerns and criticism with an amendment that Sen. Lindsey Graham (R-SC) had authored to the Defense Authorization bill that would have denied federal courts jurisdiction to consider habeas corpus petitions filed by prisoners at GITMO. The amendment also would have limited the judicial review of decisions of the Combatant Status Review Tribunals and Military Commissions.

Kagan, along with fellow law school deans T. Alexander Aleinikoff of Georgetown,
Harold Koh of Yale and Larry Kramer of Standford noted that: "When dictatorships have passed... our government has rightly challenged such acts as fundamentally lawless. The same standard should apply to our own government."

It was a harsh rebuke of the one of the cornerstone philosophical tenets of the so-called "War on Terror." And, in some respects, it diminishes the notion that Kagan values executive power over civil liberties.

The Huffington Post obtained the letter in full and it is worth a read -- if, for nothing else, because it provides a sense of how progressives who are wary of Kagan's candidacy might be brought back into the fold.




To put this most pointedly, 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 (provided that proper procedures had been followed in deciding that the person is an 'enemy combatant') 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.'

This kind of congressional structure of the detention of military prisoners is long overdue, and it highlights the absence of congressional regulation of standards of detainee treatment and the establishment of military commissions. Curiously, the Graham Amendment recognizes the need for judicial review of the determination of enemy combatant status, but then purports to bar judicial review of far more momentous commission rulings regarding determinations of guilt and imposition of punishment.

We cannot imagine a more inappropriate moment to remove scrutiny of Executive Branch treatment of non-citizen detainee. We are all aware of serious and disturbing reports of secret overseas prisons, extraordinary rendition, 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: congressional sanctioned rules that limit and guide the exercise of Executive power and judicial review to ensure that those rules have in fact been honored.