Kagan says she supports holding terror suspects without trial -- indefinitely, in some cases

[Echo In Light]

Elena Kagan, President Obama's selection for the next Associate Justice of the Supreme Court, says she supports holding terror suspects without trial -- indefinitely, in some cases.
By John Byrne

Questioned as to whether she'd support the detention of al Qaeda suspects without access to US laws -- or even a trial to prove their guilt -- Kagan told Sen. Lindsey Graham (R-SC) last year she backed the Obama Administration's policy of "indefinite detention."

Graham asked Kagan whether she'd apply battlefield law instead of criminal law if a suspect were believed to be financing al Qaeda.

"I do," Kagan said.

Under military law, Graham noted that prisoners can be held without trial in an effort to keep them from returning to the "battlefield."

http://rawstory.com/rs/2010/0510/kagan-supported-detaining-terror-suspects-indefinitely-trial/

[merh]

1. And?

There is the criminal law and there is battlefield law.

The problem with how the Bush DOJ handled terrorists or those accused of terrorism was they viewed everything one way, the black and white of the process.

What anyone who knows anything about our legal system will tell you, YOU MUST VIEW EACH CASE individually. You don't have one policy to fit all. Depending on the facts you apply the law.

Her answer was not out of line and should not concern anyone, IMHO.


Edited to add:


This is the true concern about her nomination.
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x8305103

[Webster Green]

3. Her answer is out of line with the most recent Supreme Court ruling..

On June 12, 2008, the United States Supreme Court ruled 5–4 in Boumediene v. Bush that terror suspects detained by the United States in Guantanamo Bay detainment camp have the right to seek a writ of habeas corpus in US Federal Court.

[merh]

4. Perhaps you will look at the opinion and see why they ruled as they did.

Perhaps if you read the opinion you will see that Bushco did not properly apply either criminal law and/or battlefield law (which allows for detainment, once the detainee has been properly afforded a hearing to determine status). Bushco didn't want to use the terms POW. Because he didn't want to use that classification, he didn't want to apply the Geneva Conventions (as he saw it as succumbing to international law), the 2006 Military Commissions Act was written.

SCOTUS held the MCA violated the Constitution (and Geneva Conventions). The Court ruled that the procedures established in the Detainee Treatment Act are not adequate substitutes for the habeas writ and the MCA operated as an unconstitutional suspension of that writ.

Do you know what a writ of habeas corpus is? Do you know why it exists? It is there so the detained can ask a court to determine if he/she is being lawfully detained. If Bushco complied with battlefield law (those laws and procedures set forth in the Geneva Conventions), the detainees would know why they were being detained, they would be provided a status and would be facing criminal charges or would be POWs who, by law, can be held until the hostilities have lawfully ended and they pose no threat to the detaining nation.

You fail as Bushco fails, you apply standards to all cases and don't look at each case and each situation individually, as our justice system requires.

[Webster Green]

9. Perhaps I will read the whole thing, if I can find the time.

I don't think anyone should be subjected to indefinite detention without being tried and convicted.

"Until the hostilities have lawfully ended"? That's a pretty open ended deal, especially when applied to the phony "war on terror", which will no doubt never have an ending.

Habeas corpus goes back to the 13th century. How far back shall we regress due to our cowardly fear of terrorists?

And if you compare me to Bushco again.........I'll kill 'ya. ;)

[merh]

22. You need to go read the Geneva Conventions.

They were written by realistic, yet humanistic folks. You see, they understood that being soldiers fighting for a nation involved in a war does not automatically mean that you are a criminal.

The indefinite detention is allowed only "as long as the hostilities" continue. That is, as long as the war is going on and as long as the soldier is bound by oath and obligation to his/her nation, to fight against the enemy (the detaining nation).

Stop bringing habeas corpus into this. It has nothing to do with "battlefield laws" as battlefield laws provide for due process. They provide for hearings to ascertain the lawful status of the person being detained.

Bushco afforded no such hearings, they were in favor of holding folks because they determined they should be held.

Stop thinking like Bushco, stop ignoring the actual law and I won't make that comparison, thus there will be no need to kill me. ;)

[Webster Green]

23. Yeah, but the "battlefield" is now everywhere, correct?

At least if you buy into the phony war on terror.

[merh]

25. Yes, if you buy into the phony war on terror.

Everything is not easily pigeon holed or defined. As I have said, one of the most basic premises of our justice system is that each individual case is viewed individually. You don't make blanket assumptions or conclusions, you look at the facts and you apply the law as needed.

Bushco wanted to ignore the law that fit most who we held "as captured on the battlefield" - if they conformed to international law that same law could be easily used to judge their war crimes. That is why they ignored international law, why they mocked the UN and the GCs.

In the beginning, those captured and detained as "enemy combatants" were not afforded visits by the Red Cross or even defense counsel. Gradually Bushco had to comply with international law and our system of justice.

[BzaDem]

8. No, her answer is NOT AT ALL out of line with Boumediene. Her answer is completely consistent.

Boumediene guarantees access to the courts to those detained under military law in this manner. And Kagan completely agrees with this. Graham's question was essentially whether military law provides for indefinite detention without a full criminal trial. Boumediene does not guarantee or provide for in any way a full criminal trial. It simply gives access to the courts for detainees to challenge their status and detention under the writ of Habeas Corpus. There is a HUGE difference between applying for habeas relief (which must be heard in court) and getting a full trial (which is NOT necessarily given under the law, according to all 9 justices writing in Boumediene).

Here is the full exchange:

GRAHAM: Now, the point we have to make with the world, would you agree, Dean Kagan, is that the determination that led to the fact that you're an enemy combatant has to be transparent?

KAGAN: It does, indeed.

GRAHAM: It has to have substantial due process.

KAGAN: It does, indeed.

GRAHAM: And it should have an independent judiciary involved in making that decision beyond the executive branch. Do you agree with that?

KAGAN: Absolutely.

GRAHAM: So we can go tell the world that this person is being held off the battlefield, not because one person says so, but because there's a process that led to that determination where you have an independent judiciary involved. Do you think that's important for the nation to make sure we have that kind of process?

KAGAN: I do, Senator.

[Webster Green]

2. I wonder if she's into torture too?

Drip...drip...drip...there goes the constitution.

Oh, well.

[grantcart]

6. Really so when President Roosevelt kept 425,000 enemy combatants

in indefinite detention you are equating that with his approving of torture?

[harkadog]

27. It was not indefinite detention.

They were be to held until the end of WW II and they were. They were then released. This war has no end. Everyone who buys into it says it will go forever all over the globe as long as there is even one peasant in the world angry at the U.S. Who is the peace treaty going to be signed with?

[EFerrari]

14. Well, the administration is a lot less anti-torture than the candidate

said he was. So, how surprising would it be. Maybe someone will find a statement from her.

[grantcart]

5. Is your objection that she would extend the law to include financiers

or that the law allows indefinite detention for battlefield combatants?

[Echo In Light]

7. I'm highly skeptical of anyone who supports *any* aspect of this phony 'war' as legit

Period

[grantcart]

10. So in fact you have no objection to the law but the war

For example if a ground war broke out in the DMZ and 10,000 North Korean troops ended up heading to a US base so that they could surrender are you saying that each of them could not be detained without legal counsel.

In the same vein do you think that the 425,000 enemy combatants that President Roosevelt kept in indefinite contention was illegal and morally wrong?

[Echo In Light]

12. Is the 'war on (of) terror' a real 'war' or not?

[grantcart]

13. That is not the point of your post

Your post seems to indicate that agreeing with the theoretical possibility of indefinite detention.

Are you saying that you agree with the principle of indefinite detention of enemy combatants in a conventional war but do not agree to it in the Afghan war?

[Echo In Light]

15. How are you aware of what is or isn't my motivation for sourcing an article?

[grantcart]

16. No one knows what anyone's intention or motivation in sourcing an article

One can only judge on what is written.

For example a KKK racist could come here and post an article that is against President Obama's handling of Gitmo and we wouldn't know the motivation.

In your case your motivation is irrelevent.

You started a thread that appears to attack President Obama because he has atleast a theoretical agreement that the principle of indefinite detention should not be completely eliminated.

In responding to questions you seem to indicate that you have no real feeling or opinion on the legal principles but that you are primarily against the President and his actions because of the Afghan war.

Your reasoning in defending the OP is completely muddled. No one knows what your motivations are and I for one wouldn't dare to offer a guess.

[Echo In Light]

18. Yes. Precisely.

[grantcart]

20. So we are in agreement that your arguments in defending the OP are "muddled".

[Echo In Light]

21. Absolutely not. But we'd never agree on anything re this broad matter.

[BzaDem]

11. Kagan's position is no different different than any of the liberals on the court.

Kagan simply agreed that enemy combatents can be held indefinitely, provided that they have an opportunity to challenge their detention in court. This is consistent with Stevens, Souter, Breyer, Sotomayor, and Kennedy's position.

[ConcernedCanuk]

17. Wow - between the perpetrators of 911 and the Bush administration's esponse

.
.
.

"Mission Accomplished" indeed

USA is living in terror mode

USA is killing itself with it's lack of regard for human beings.

Reminds me of the "red" scare during the cold war.

That was bullshit too . .

But here we go again; point to a neighbor - and the feds will be all over him/her

no http://en.wikipedia.org/wiki/Habeas_corpus">Habeas corpus - just throw them in jail without any rights/representation

Democracy at work?

Home of the brave?

Land of the free?

:freak:

[Echo In Light]

19. The entire, essential point, exactly.

[Greyhound]

24. Fear and Terra!

What changed?
:kick: & R

[WinkyDink]

26. "Justice" based on "belief." Suspects treated as convicts, or worse. Gotta love it.