Genius
05-10-2010, 10:29 AM
http://www.theatlantic.com/national/archive/2010/05/kagan-may-mean-a-more-conservative-court/56455/
Kagan May Mean a More Conservative Court
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Justice Stevens led the Court's assault on the Bush Administration's sweeping claims of presidential and congressional power to war against terrorism. In three big decisions in 2004, 2006, and 2008, narrow liberal majorities -- with swing-voting Anthony Kennedy providing the fifth vote -- for the first time asserted judicial power to review presidential detentions of alleged "enemy combatants" seized and held abroad. Stevens and his allies also invalidated the rules decreed by Bush for "military commission" trials of foreigners for alleged war crimes and severely restricted interrogations of suspected terrorists.
Kagan has had no occasion to revisit those precise issues as solicitor general. But on somewhat analogous issues -- both in her 2009 confirmation testimony and in defending Obama's continuation of some Bush policies that left-liberals reviled -- she has sought to limit the reach of the 2008 decision and has firmly rejected the stance of the left.
"Among the most disturbing aspects" of Kagan's record, wrote left-liberal commentator Glenn Greenwald in Salon, "is her testimony during her Solicitor General confirmation hearing, where she agreed wholeheartedly with [Republican Senator] Lindsey Graham about the rightness of the core Bush/Cheney Terrorism template: namely, that the entire world is a 'battlefield,' that 'war' is the proper legal framework for analyzing all matters relating to terrorism, and the government can therefore indefinitely detain anyone captured on that 'battlefield' (i.e., anywhere in the world without geographical limits) who is accused (but not proven) to be an 'enemy combatant.'"
Likewise, as Solicitor General, she has forcefully championed Obama's continuation of Bush's long-term detention without trial of Guantanamo prisoners; of Bush's detention of prisoners in Afghanistan with no judicial review at all; and of Bush's use of the "state secrets" doctrine to fend off lawsuits over Bush's warrantless wiretapping program. Kagan has also apparently helped shape Obama's plan to use congressionally revamped military commissions to try some terrorism suspects and other broad claims of presidential power.
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Kagan May Mean a More Conservative Court
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Justice Stevens led the Court's assault on the Bush Administration's sweeping claims of presidential and congressional power to war against terrorism. In three big decisions in 2004, 2006, and 2008, narrow liberal majorities -- with swing-voting Anthony Kennedy providing the fifth vote -- for the first time asserted judicial power to review presidential detentions of alleged "enemy combatants" seized and held abroad. Stevens and his allies also invalidated the rules decreed by Bush for "military commission" trials of foreigners for alleged war crimes and severely restricted interrogations of suspected terrorists.
Kagan has had no occasion to revisit those precise issues as solicitor general. But on somewhat analogous issues -- both in her 2009 confirmation testimony and in defending Obama's continuation of some Bush policies that left-liberals reviled -- she has sought to limit the reach of the 2008 decision and has firmly rejected the stance of the left.
"Among the most disturbing aspects" of Kagan's record, wrote left-liberal commentator Glenn Greenwald in Salon, "is her testimony during her Solicitor General confirmation hearing, where she agreed wholeheartedly with [Republican Senator] Lindsey Graham about the rightness of the core Bush/Cheney Terrorism template: namely, that the entire world is a 'battlefield,' that 'war' is the proper legal framework for analyzing all matters relating to terrorism, and the government can therefore indefinitely detain anyone captured on that 'battlefield' (i.e., anywhere in the world without geographical limits) who is accused (but not proven) to be an 'enemy combatant.'"
Likewise, as Solicitor General, she has forcefully championed Obama's continuation of Bush's long-term detention without trial of Guantanamo prisoners; of Bush's detention of prisoners in Afghanistan with no judicial review at all; and of Bush's use of the "state secrets" doctrine to fend off lawsuits over Bush's warrantless wiretapping program. Kagan has also apparently helped shape Obama's plan to use congressionally revamped military commissions to try some terrorism suspects and other broad claims of presidential power.
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