Some may recognize me as one of the more active commenters regarding the present nomination to the Supreme Court. And if you do, you've probable noticed that my comments have generally been of disappointment, skepticism and concern about this nominee, particularly including concern about her ideas of executive power.
I'm not much of a diary-writer, more of a commenter, but I thought I would share something about how my thinking regarding this has evolved today and why it has done so. (Hint: it's not because of the accusations of poutrage, being opposed to any Obama nominee, idolizing Glenn Greenwald, being too lazy to read and think for myself, or any other such silliness I've had lobbed my way in the last couple of days.)
So if you're interested, follow below the fold.
Elena Kagan has written one major piece on executive power, Presidential Administration. In it, she discusses a trend started under President Reagan and continued under President Clinton of more direct assertion of presidential control over executive branch agencies for the purposes of furthering the president's agenda. It's an interesting read which I recommend, particularly as it's one of the few places where she has publicly advocated a particular interpretation of law.
I don't have any problem with what she advocates in this paper, as far as it goes. I'll go further and say I largely agree with it. But what this paper doesn't do is shed any light on what she thinks of the Bush/Cheney concept of the "unitary executive" - particularly as it comes to war powers in the context of a boundless "war on terror" with ill defined and constantly changing enemies and fields of combat.
With regard to that, one of the few things we've had to go on is this exchange with Senator Graham during her confirmation hearing for Solicitor General:
GRAHAM: ... Now, I asked him this question, "Now, when you talk about the physical battlefield, if our intelligence agency should capture someone in the Philippines that is suspected of financing al Qaida worldwide, would you consider that person part of the battlefield, even though we're in the Philippines, if they were involved in al Qaida activity"? Holder said, the attorney general said, yes, I would. Do you agree with that?
KAGAN: I -- I do.
GRAHAM: So that gets us back to Senator Feinstein's question. Under law of armed conflict, as I understand it, under the Geneva Convention, Article V says, if there's a dispute about status, what you're entitled to is an independent, neutral decision maker. And in most wars, that can be a battlefield determination by a single officer. But because the is a war without end, that will not end on -- with a ceremony on the USS Missouri, there will be no defined end, I am all for giving more due process.
But the point she's making I think is an important point. You cannot detain somebody indefinitely under criminal law. They have to have a trial. But under military law, if you're part of the enemy force, there is no requirement to let them go and go back to the war and kill your own troops. Do you agree that makes sense?
KAGAN: I think it makes sense. And I think that you're correct that that is the law.
Now Graham goes on to pay a little lip service to judicial review, with which she also agrees. I don't want to make too much of this exchange other than to say it raised a significant doubt in my mind of how far this reasoning goes. In particular, this concept of "battlefield" is disturbing given that it seems mainly intended to justify denying legal protections despite the absence of the exigencies of an actual "battle."
So I've been commenting a lot about the need for considerable clarification of what Kagan thinks regarding this issue.
Happily, some more information has come to light. ScotusBlog links this 2005 letter (pdf) - hat tip to jsfox - from several law deans including Kagan to Senator Leahy regarding an amendment limiting Guantanamo Bay detainees’ access to federal courts.
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.
They go on to discuss the intent of the Graham Amendment to reverse the SCOTUS ruling in Rasul v. Bush. But more relevant to our interests today, they add:
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.
(emphasis mine)
I couldn't have said it better myself.
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 gullt 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.
(again, emphasis mine)
Here they explicitly assert both the power of Congress to limit the scope of presidential power (regardless of any state of war, as was being claimed contemporaneous to this letter) and the power of the judiciary to review uses of executive power.
I would perhaps have liked them to go on and question the constitutionality of such a legislative intrusion on the power of the judiciary, but at any rate this goes a very long way to alleviating any concerns I had about her understanding of executive power extending beyond what she wrote in Presidential Administration.
So has this converted me into a full-throated supporter of her nomination? Sorry, but no. There's still a lot more I need to know to get there. I'm closer now than I was this morning, however.