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Tilting at Windmills

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May 10, 2010

KAGAN'S 2005 LETTER.... The most substantive area of criticism when it comes to Elena Kagan's record tends to focus on the power of the executive, specifically in areas of national security. But Steve M. flags this NPR report on a letter Kagan signed five years ago, which offers at least some encouragement on this front.

In a 2005 letter to Sen. Patrick Leahy (D-VT), Kagan and three other deans of major American law schools wrote to oppose legislation proposed by Sen. Lindsey Graham (R-SC) to strip the courts of the power to review the detention practices, treatment and adjudications of guilt and punishment for detainees at Guantanamo Bay, Cuba.

"To put this most pointedly," the letter said, "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 ... 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."

"When dictatorships have passed" similar laws, said the deans, "our government has rightly challenged such acts as fundamentally lawless. The same standard should apply to our own government."

Many on the right, who'd assumed Kagan would be their ally on executive power, aren't happy about this. A good sign, to be sure.

I don't imagine one letter, five years ago, will necessarily erase concerns on the left, but it's nevertheless a heartening contribution to the record.

Steve Benen 3:10 PM Permalink | Trackbacks | Comments (10)

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No Steve, a letter written in 2005 or the single public speech she gave regarding an overextension of executive power back in 2003 does NOT help this liberal rest easy in her mind.

I've seen the Obama administration promulgate many of the same policies of the Bush administration that I believed he would change. In the area of civil liberties, Obama has been a huge disappointment to me. And the fact that he would nominate Kagan, instead of a person (i.e., Diane Woods) who has been very vocal regarding the dangers of executive power overreach is an indication, to me, that he believes she will support his viewpoint.

What we see now is the "spectacle" where Republicans supposedly oppose her nomination, while the Dems (including liberal progressives) are expected to line up in support Obama's nomination due to the Right's opposition. It seems to be all a ridiculous game that ends with more power in the hands of the Executive and probably corporations as well. As demonstrated by her pathetic job in front of the Supreme Court in the case that now allows corporations to contribute directly in political contests.

Sorry, I'm with Greenwald on this one.

Posted by: winddancer on May 10, 2010 at 3:33 PM | PERMALINK

The concerns from the left are overstated because websites and cable need a narrative to keep the story alive.
Most people want a judge who is fair-minded,knows the law as it is written and its application to our modern society.

Posted by: hornblower on May 10, 2010 at 3:40 PM | PERMALINK

While on the road this afternoon I heard NPR report that Lindsay Graham is troubled that she is not a judge.

-Of course nobody asked him WHY she is not a judge. . .

Posted by: DAY on May 10, 2010 at 3:48 PM | PERMALINK

Just to be sure I am awake I always look at Little Booties contribution to the Supremes . By golly it seems after looking at the supremely smug mugs of the Right Wing Activist Court , the Liars who Lied at their nomination hearings , bingo jingo ! Awake !
Of course when Snarlin Arlen patted his pawkett and said I got right Heah an imaginary letter which destroyed the real comity available for Anita ...
Of course that letter whose existence was never established , was the first shot in the theocratic wars that allowed the "Great Justice Thomas" to float like a pornographer and sleep lie a sloth for the great right wing lullaby lies .
Yes , the nattering nabobs of nit picking have missed the galloping herd of lying liars to focus on the itty bitty bad lady who will destroy the great American experiment . Really she will
No seriously
I mean it

Posted by: FRP on May 10, 2010 at 4:04 PM | PERMALINK

I suppose it's another sad commentary on the state of political thought here that a letter opposing Star Chamber proceedings is controversial. What is there to be controversial about?

Posted by: Keith on May 10, 2010 at 4:38 PM | PERMALINK

I know that it irks the hell out of some folks to realize that Obama knows the Constitution, not jut as a lawyer, but as a professor.

His selection to the Supreme Court is so fundamentally huge, that, I suspect the right will go absofuckalootely insane over the selection.

They have no choice. No shame. Nada.

In a way, if Kagan becomes a SCOTUS, Obama will have made history.

The type of history that will say......

The anger from the right is so blatantly selfish and small minded.

We are going to need a healthy SCOTUS to survive.

Healthy for all, that is, not corporate interests alone.

The battle lines are drawn:



Posted by: Tom Nicholson on May 10, 2010 at 4:40 PM | PERMALINK

i'm a bit worried, but holding off anything resembling a final opinion....by the way, daniel larison has a piece up that echoes the various civil liberties and executive powers concerns...

Posted by: dj spellchecka on May 10, 2010 at 5:15 PM | PERMALINK

Corporate insurance salespeople trying to "erase concerns on the left" are doing so fraudulently.

Kagan will dramatically move the Supreme Court to the right, Obama knows this, clearly it is his plan.

True, she's not an extreme right-wing activist like Alito, Roberts, Scalia, or Thomas, but 'not extreme right-wing' isn't the change that millions of actual liberals voted for.

Those that claim to 'speak for the left' and are still making excuses for Obama's right-wing nonsense are either fools or frauds.

You are walking a fine line here Benen.

As a long-time reader who sincerely appreciates your voice, it would be nice if you showed some of your characteristic integrity and stopped acting like Obama's right-wing water boy.

Or does Kagan's right-wing corporatism express truly your values, Benen?

Posted by: Annoyed on May 10, 2010 at 5:37 PM | PERMALINK

Look people, it's obviously better news than if she had signed a letter supporting Graham's bill.

Posted by: bobbo on May 10, 2010 at 7:07 PM | PERMALINK

A letter written 5 years ago does not trump Kagan's testimony in her confirmation hearing for the SG's job, responding to a question from Sen. Lindsey Graham (and posted on another blog):

GRAHAM: "If our intelligence agencies should capture someone in the Philippines that is suspected of financing Al Qaeda worldwide, would you consider that person part of the battlefield? Do you agree with that?"

It seems, therefore, that Elena Kagan believes suspected terrorists may be labeled "enemy combatants" who can then be held indefinitely without charges or trial.

No, Steve, one letter from 5 years ago doesn't ease my concerns at all. Nor does her defense of the Patriot Act before the Supreme Court.

I'm also disappointed in Sen. Patrick Leahy's cheerleading for her nomination. As a former prosecutor and a stand-up guy when the principle of habeus corpus was under attack, he should have gone for someone else on the short list.

Posted by: Euan Bear on May 10, 2010 at 8:53 PM | PERMALINK



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