THE BLOG

Elena Kagan's Strange Bedfellows

05/16/2010 07:39 pm ET | Updated May 25, 2011

This is not about Elana Kagan's personal and fully private personal life, whatever that may be. But it is about a relationship that is of particular concern because it deals with Kagan's predilections toward an issue that is of grave national security concern at a time when the nation continues to be under threat.

In May of last year, Elena Kagan, as Solicitor General, filed an amicus brief before the Supreme Court against the claim of thousands of victims and family members of the September 11 terrorist attack. Her brief petitioned the Supreme Court, urging the court not to hear the plaintiffs arguments, and to let stand lower court rulings that held that the Saudi government as well as senior members of the Saudi royal family could not be sued in U.S. courts nor by U.S. citizens under their rigid interpretation of "sovereign immunity."

The Supreme Court sided with Kagan's argumentation. This in spite of the fact that the plaintiffs claimed they could provide clear evidence that the Saudis had dispersed millions of dollars in support of al-Qaeda in the years leading up to the September 11 attacks.

The ruling caused outrage among a number of U.S. Senators including Senator Arlen Specter (D-Pa), Lindsey Graham (R.-S.C.) and Charles Schumer (D-NY). Schumer would comment,
"She wants to coddle the Saudis."

Today, appearing on a Sunday talking heads program, former House Speaker Newt Gingrich castigated Kagan for having accepted money from the Saudis while Dean of Harvard Law. Germane? Possibly, possibly not, but now a fact to be considered, given her amicus brief.

The disappointment among families of the victims was profound. "We were terribly disappointed with her ruling," Beverly Burnett of Northfield, Minn. was quoted in the Philadelphia Inquirer. Her son perished on Flight 93 near Shanksville, Pa. "We had hoped she would be with us so we could have our day in court."

Importantly, Kagan's nomination brings up again the issue of "Sovereign Immunity," and what it portends to our safety.

A post in this space, "The Doctrine of Sovereign Immunity Presents a Grave Danger to Our Security July 3, 2009," touched on the issue of the Court's ruling. With her nomination the matter needs to be revisited.

Kagan's argumentation to the Court raises the very troubling question that if "Sovereign Immunity" is extended to Saudi princes, how can we effectively deal with the issue of terrorism? It would mean a tier of engaged protagonists would be free to function as instigators and supporters of terrorism, accountable to no one, least of all in the courts of law where their alleged intercession took the lives of thousands.

The prospect of Kagan sitting on the Court parsing these issues becomes particularly troubling. Consider the flip side of this matter. That is to say, if the princes did what the 9-11 families alleged they did, acting thereby on behalf of or as a sovereign state for which and/or through which they are claiming immunity, then their alleged criminality would no longer be limited to a conspiracy to murder. It becomes, because of its standing as a sovereign act, an act of war.

How Ms. Kagan would now deal with the issue of Sovereign Immunity in the age of 9/11 and the Times Square Bomber should be key be in determining her qualifications to serve.