Constitutional Law

Kagan: "Enemy Combatants" May Be Held Without Trial

Harvard Law School dean Elena Kagan came one step closer to becoming the 46^th Solicitor General yesterday, breezing through her hearing before the Senate Judiciary Committee. Opposition to her nomination was mitigated in part by her agreement with the previous administration’s position that “enemy combatants” may be held without criminal procedural safeguards, including the right to a speedy trial.

At various points in the proceedings, Kagan emphasized that her view of the Solicitor General’s role is to defend federal laws irrespective of the administration’s related positions. Though agreeing that no one could be detained indefinitely, Kagan and Sen. Lindsey Graham (R-S.C.) drew a stark contrast between U.S. criminal law and the law of war. 

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?”

Kagan: “I do.”

…                          

Graham: “If you’re part of the enemy force, there is no requirement to let them go back to the war and kill our troops. Do you agree that makes sense?”

Kagan: “I think it makes sense, and ... that is the law.”

Graham: “So America needs to get ready for this proposition that some people are going to be detained as ‘enemy combatants,’ not criminals.”

H/T: How Appealing

Full post as published by ACS Blog on February 11, 2009 (boomark / email).