Kagan: against torture and arbitrary detention

She was against them, when Lindsey Graham wanted to shred the Constitution to permit them.

In 2005, Lindsey Graham – that very reasonable Republican – offered an amendment to strip the federal courts of all jurisdiction over detainee affairs. The goal was to prevent the court from deciding Hamdan v. Rumsfeld. Elena Kagan, whose coming Supreme Court nomination has some progressives up in arms, joined three other law school deans in writing a letter to the chairman of the Senate Judiciary Committee. The letter read, in part:

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.

[snip]

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

When dictatorships have passed laws stripping their courts of power to review executive detention or punishment of prisoners, our government has rightly challenged such acts as fundamentally lawless. The same standard should apply to our own government.

[Per Nina Totenberg, h/t Mark Memmott. Full text at the jump.]

I’m not denying that Graham is sometimes somewhat less rabid than his colleagues, or that there were other potential Justices who would have been more forthrightly liberal on a range of issues, including the limitation of executive power in the national-security area. But the fact that a relatively moderate Democrat was willing to speak out against torture and arbitrary detention in 2005, when even a relatively moderate Republican was all in favor of it, points up the gulf between the two parties, and the folly of the “progressive” strategy to punish Barack Obama from not being Bernie Sanders by sitting on their hands while the Republicans retake the House and add several seats in the Senate. Even Bernie Sanders wouldn’t be Bernie Sanders if he found himself in the Oval Office. That’s just life in the big city.

NOVEMBER 14, 2005.

DEAR SENATOR LEAHY: We write to urge that the Senate adopt the amendment of Senator Bingaman removing the court-stripping provisions of the Graham Amendment to the Department of Defense authorization bill. As professors of law who serve as deans of American law schools, we believe that immunizing the executive branch from review of its treatment of persons held at the U.S. Naval Base at Guantanamo strikes at the heart of the idea of the rule of law and establishes a precedent we would not want other nations to emulate.

At the Guantanamo Naval Base, the Government has subjected foreign nationals believed to be linked to Al Qaeda to long-term
detention and has established military commissions to try a small number of the detainees for war crimes. It is entirely clear that one of the Executive Branch’s motivations for detaining noncitizens at Guantanamo was to put their treatment beyond
the examination of American courts.

The Supreme Court rejected the Government’s claim in Rasul v. Bush that federal habeas corpus review did not extend to
Guantanamo. The extent of the rights protected by federal habeas law is now before the Federal Court of Appeals for the D.C.
Circuit. Another challenge has been filed to the authority of the President, acting without congressional authorization, to convene military commissions at Guantanamo. Just last week the Supreme Court announced that it would review the case, Hamdan v. Rumsfeld.

The Graham Amendment would attempt to stop both of these cases from proceeding and would unwisely interrupt judicial processes in midcourse. Respect for the constitutional principle of separation of powers should counsel against such legislative interference in the ongoing work of the Supreme Court and independent judges.

Unfortunately, the Graham Amendment would do much more. With a minor exception, the legislation would prohibit challenges to detention practices, treatment of prisoners, adjudications of their guilt and their punishment. 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.

We do not object to the Graham Amendment’s procedural requirements for determining whether or not a detainee is an enemy combatant and providing for limited judicial review of such decisions. This kind of congressional structuring 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 noncitizen detainees.
We are all aware of serious and disturbing reports of secret overseas prisons, extraordinary renditions, 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: congressionally sanctioned rules that limit and guide the exercise of Executive power and judicial review to ensure that those rules have in fact been honored.

When dictatorships have passed laws stripping their courts of power to review executive detention or punishment of prisoners,
our government has rightly challenged such acts as fundamentally lawless. The same standard should apply to our own government.

We urge you to vote to remove the court-stripping provisions of the Graham amendment from the pending legislation.

T. ALEXANDER ALEINIKOFF,
Dean, Georgetown University Law Center.
ELENA KAGAN,
Dean and Charles Hamilton Houston Professor of Law, Harvard Law School.
HAROLD HONGJU KOH,
Dean and Gerard C. & Bernice Latrobe Smith Professor of International Law, Yale Law School.
LARRY KRAMER,
Dean and Richard E. Lang Professor of Law, Stanford Law School.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

6 thoughts on “Kagan: against torture and arbitrary detention”

  1. The question is, is she going to repudiate her position on book banning, should she make it to the Court? At a minimum she should be asked about that during the hearings.

  2. Is "against torture and arbitrary detention" the bar that Obama's nominee must clear? Until the Bush regime, if anyone had asked any nominee, Democrat or Republican, whether she was against torture and arbitrary detention, she would have rightfully said, "Are you crazy? How can anyone with even the most minimal respect for the Constitution not be against those?"

    Many of us Obama supporters hoped for more, such as that he would not move the Court to the right.

  3. That's nice. But I would also expect, at a minimum, someone who does not approving of stripping women of bodily autonomy at some arbitrary point during pregnancy. Based on her advice to then-president Clinton, Ms. Kagan does not seem to meet that minimal standard.

    I would appreciate any evidence to the contrary.

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