Does Kagan Think the 2001 Afghan AUMF Authorized Iraq?

I’m going to assume that this was just a misstatement on Elena Kagan’s part, but it’s one that I hope she corrects before her confirmation hearings are done. In response to a question from DiFi, Kagan suggested that SCOTUS’ decision in the Hamdi case–which relied on the 2001 Authorization to Use Military Force passed after 9/11–applied to Iraq and Afghanistan.

DiFi: Could you elaborate on the scope of the President’s authority to detain individuals under the law of armed conflict?

Kagan: Senator Feinstein, the conversation that Senator Graham and I had–and I believe in that same hearing you asked a similar question–starts with the Hamdi case, where the Supreme Court said that the AUMF–the authorization for the use military force–which is the statute that applies to our conflict with Iraq and Afghanistan, that the AUMF includes detention authority, detention authority, and Hamdi said that the law of war typically grants detention authority in a wartime situation and interpreted the AUMF consistent with that law of war understanding.

Hamdi, of course, doesn’t even mention Iraq. And while Bush did conduct detention in Iraq in relation to that separate war, those detention operations fell under different guidelines even according to the radical people running the Bush Administration. More troubling, however, is the possibility that Kagan has internalized the false claims of many on the right that Iraq had anything at all to do with the 2001 AUMF, which authorized action only against those with ties to 9/11.

Again, I’m hoping this was just a misstatement, one which Kagan will correct before these hearings are done.

22 replies
  1. tejanarusa says:

    Sorry to go OT but TPM has these on 2 issues important here:

    S.Ct. orders review of Siegelman case (and vacated the judgment):


    Study finds Improper “Burrowing” During Bush Years:

    Returning you now to your regularly scheduled post. Apologies.
    The most – surprise! – at DOJ. Second most – “Homeland Security.”

  2. JTMinIA says:

    Hope all you want, but I believe that this is what she believes. And that’s a majority of why she was nominated.

  3. john in sacramento says:

    Kagan: Senator Feinstein, the conversation that Senator Graham and I had–and I believe in that same hearing you asked a similar question–starts with the Hamdi case, where the Supreme Court said that the AUMF–the authorization for the use military force–which is the statute that applies to our conflict with Iraq and Afghanistan, that the AUMF includes detention authority, detention authority, and Hamdi said that the law of war typically grants detention authority in a wartime situation and interpreted the AUMF consistent with that law of war understanding.

    Good it’s not just me, Marcy

    Sometimes I can be pretty slow, but it sure seems like she’s speaking a lotta words, while at the same time, not actually saying anything. WTF does she mean? And I know it might look like an over-exaggeration, but she’s awful close to channeling someone else

    Well, let’s see. There’s ― of course in the great history of America there have been rulings that there’s never going to be absolute consensus by every American, and there are those issues, again, like Roe v. Wade, where I believe are best held on a state level and addressed there. So, you know, going through the history of America, there would be others but ―

  4. Mary says:

    So did DiFi do any follow up?

    Like mentioning that Hamdi was basically a plurality decision on the detention issue or asking her why she disagreed with Scalia’s opinion that the plurality in Hamdi wsa transmorgifying the great writ (after all, since when does it hurt to mention that Scalia was willing, back then when he knew it wasn’t going to happen, to hold a presicent accountable for violating the constitution on that one)

    Or even hander he over a copy of the two AUMFs and ask her to circle the place in those AUMF’s where Congress gives that detention authority. Or ask her if she’s progressed past Hamdi, through and to Boumediene? Or – whatever.

  5. b2020 says:

    “I’m hoping this was just a misstatement, one which Kagan will correct before these hearings are done.”

    Why? I mean, what’s in it for you? I don’t think there is anything to be gained here for the rest of us, anyway. I do not support Kagan, and anything that wrecks her nomination – especially an asinine position unpalatable even to the whorehouse that is Congress – is a win in my book.

  6. powwow says:

    The basics of the “law of the land” with regard to protected wartime detainees – Geneva Conventions treaty law ratified after World War II by the U.S. Senate, which is equivalent in force to domestic law under our Constitution – have been ignored, with impunity, by our President and his military chain of command, our Congress, our media, and many of our judges (particularly those sitting on the D.C. Circuit Court of Appeals, the only lower federal appeals court to which our military’s detainees have any access), since 9/11/2001.

    IF we had a single Senator on the Senate Judiciary Committee with integrity, genuine respect for human rights and the rule of law as embodied in our Constitution, and perhaps a modicum of moral courage, erstwhile Supreme Court nominee Elena Kagan would be asked a version of the following:

    “Is the United States engaged in an armed conflict in Afghanistan?”

    Followed by:

    “Do you consider Article 5 of the Third Geneva Convention to be binding on the United States government during armed conflict?”

    Followed by:

    “If so, does Article 5 require that all captives of the U.S. military receive the protection of Prisoner of War status unless and until a “competent tribunal” hears evidence of an alternate status for the captive, from both the captor and the captive, and renders a verdict that either confirms the POW status, reduces the detainee’s protections to Common Article 3 minimums, or to some other related protection for civilians, or orders the release of the captive?”

    Followed by:

    “Are the ‘Combatant Status Review Tribunals’ that were held at Guantanamo considered to be ‘competent tribunals’ in satisfication of the requirements of Article 5, according to the military judges overseeing the MCA-authorized military commissions?”

    Followed by:

    “Has the United States military, from what you can gather from public reports, complied with the requirements of Article 5, as to POW status, and competent tribunals to strip such status, since 2001, in our armed conflicts abroad?”

    And, of course, if not, why not, to all, as appropriate.


    1. Our Congressionally-blessed, independent-judiciary-spurning military commission system has no jurisdiction over POWs. They would need to be tried by courts-martial under the UCMJ, in our real military justice system, for any alleged violations of the law of armed conflict.

    2. The status of being an unprivileged combatant is not a war crime in itself. To reach that threshold, an unprivileged combatant [as properly classified by an Article 5 tribunal] must act against unlawful targets, or otherwise actually violate the law of armed conflict, to be subject to prosecution by a country (for alleged war crimes) other than the nation where the act occurred (for possible violations of that nation’s domestic law).

    3. Since no POW protection or status was given to any of our wartime captives in Afghanistan or Guantanamo, and no fair Article 5 hearings to assign an accurate alternate detention status to them were held (a status which determines both the lawfulness of their detention and pre-capture behavior, and their subsequent treatment rights in captivity), in open violation of our obligations under “the law of the land” as spelled out by Article 5 of the Third Geneva Convention and Army Regulation 190-8, all our detainees continue to be de facto POWs until proven otherwise.

    Unless, that is, unilateral Executive Decree (at the behest of David Addington, Dick Cheney, and Alberto Gonzales) can, at will, void the law of the land and treaty law, without Congress first actually removing the U.S. as a co-signer of the Geneva Conventions as a whole, to moot Article 5 or any other provision.

    Or unless, mirroring a certain specious political argument from another law professor, Kagan too reads this portion of Article 5 of the Third Geneva Convention:

    “Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the [POW] categories enumerated in Article 4, such persons shall enjoy the protection of the present [POW] Convention until such time as their status has been determined by a competent tribunal.

    To mean:

    [Provided that the detaining power has no doubt in its own mind] as to whether persons, having commmitted a belligerent act and having fallen into the hands of the enemy, belong to any of the [POW] categories enumerated in Article 4, [because the detaining power simply unilaterally decrees that said captives do not belong to any such POW categories] such persons shall [not] enjoy the [POW] protection of the present [POW] Convention, [indefinitely], or until such time as their status [may finally be forced to be accurately] determined [years post-capture] by a competent tribunal [during possible future military commission pre-trial proceedings (as was the case with Salim Hamdan)].

    All of this assumes, of course, in the face of overwhelming evidence to the contrary, that such a concept as “the rule of law” governing the powerful is anything more in this nation than some sort of high-minded theory spouted by Senators for the television cameras at Supreme Court nomination hearings.

    The fact is that our “War on Terror” captives are being treated as hybrid prisoners, who fall in a lawless, manufactured gap between protected wartime detainees (whose detention the Geneva Conventions govern – wartime rules which the United States President and Congress have openly violated since 2001) and criminal suspects (whose due process rights are spelled out by the U.S. Constitution – but which the U.S. President and Congress have implicitly repudiated for non-citizens since 2001). This “hybrid” status meets the mandated requirements for the treatment by government authorities of neither wartime detainees nor domestic (or war) criminal suspects.

    The U.S. military obviously has, and had, no independent, fact-based evidence available to prove that the vast majority of its (current and former) detainees in Afghanistan and Guantanamo (where more than 50% of the prisoners were released, years after their capture, before Obama became president, despite the ongoing “war”) were actual combatants, or participants in hostilities in this armed conflict, in accordance with the law of armed conflict – unlike POWs in earlier wars, who could therefore legitimately be indefinitely detained, with humane treatment, for the duration of the conflict.

    Therefore, our military, at the direction of the President himself, resorted to unlawfully coercing and torturing statements out of its captives [“intelligence squeezing,” as former Guantanamo Military Commisssions chief military prosecutor Colonel Morris Davis just termed it in an interview with a newspaper in Pakistan] in an attempt to use the captives’ own words against them so as to justify their detention on some sort of pseudo-criminal, pseudo-wartime detainee basis that comports with the legal requirements of neither status. A basis that borrows due-process-limited, Judicial Branch-unsupervised detention from wartime rules to hold non-combatant detainees with impunity, while Members of Congress cowardly look the other way.

    Some small minority of those detainees – neither POWs nor domestic criminals nor verified to be actual combatants – who are locked up by our military under false pretenses in the name of the law of armed conflict are – likewise without any need to prove the same to an impartial tribunal or independent judge or grand jury – also accused of non-war-crime offenses (including the “crime” of Resisting U.S. Aggression While Muslim, and “material support for terrorism” – which is already a carte blanche domestic criminal offense), that have now been conveniently relabeled by Congress in the Military Commissions Act as purported war crimes. All so that the Executive Branch can pretend [MP3 recording of the January oral argument of the Hamdan appeal in the Court of Military Commission Review] that it can assert unilateral jurisdiction and control over the prosecution of its captives – that is, play judge, jury, prosecutor and executioner within the military chain of command, answerable only to the President, with too little, too late, if any, Judicial Branch oversight as to the validity of its unchecked, if oath-sworn, “defense” of the Constitution.

    Someone, sometime, really ought to clue in the American media and Members of Congress about the inoperative status of the “law of the land” in Washington, D.C., before they finish lecturing Kagan about “law,” and “precedent,” and the “Constitution,” and other such niceties that they clearly consider to be applicable to, and worthy of actual enforcement against, only powerless or demonized little people in the provinces.

    • oldoilfieldhand says:

      Awesome! Keith and Rachel are you reading this? Please do something about this before we become a corporate military dictatorship! We could be next…

      • bobschacht says:

        Visitors to the state of Tennessee, like me, don’t get to see Keith & Rachel: The motels we’ve stayed in, in Memphis and Nashville, don’t carry MSNBC. I’d like to know if this is a general blackout, or only the whim of the motel chains we’ve stayed at.

        Bob in AZ

  7. BayStateLibrul says:


    Maybe Bmaz can do a piece on copyright infringement… (RE: Rolling Stone can’t get any Satisfaction?)

    Pool Boy is a jerk

    “Reached by e-mail on a plane, Jim VandeHei, executive editor and a founder of Politico, suggested that the imperatives of the news cycle superseded questions of custody. “Our reporters got the article from sources with no restrictions,” he wrote. “It was being circulated and widely discussed among insiders, and our team felt readers should see what insiders were reading and reacting to. Rolling Stone raised a reasonable objection once they posted the story, so we quickly agreed to link to their URL.”

  8. rosalind says:

    another OT: FWIW – via the Telegraph

    “Terrorism suspects could get compensation if they have been tortured abroad”

    ‘Terrorism suspects could receive compensation if they have been tortured overseas with the complicity of the British security services, under the terms of a government inquiry to be announced by David Cameron.’

  9. BoxTurtle says:

    I doubt Kagan is impressing anybody. But then her job is simply not to offend anybody.

    It’s still a done deal.

    Boxturtle (And we’d get a better idea of what Kagan thinks by talking to Rahm or Obama)

  10. Hugh says:

    These hearings are kabuki. Questioners ask non-questions and Kagan replies with non-answers. As to Hamdi, it seems likely that Kagan either did not know there were two AUMF or thought that the language in them was the same.

    And just to recap here is the text of the 2001 AUMF:

    September 14, 2001
    Mr. DASCHLE (for himself and Mr. LOTT) introduced the following joint resolution; which was read twice, considered, read the third time, and passed

    To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.
    Whereas on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens;
    Whereas such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad;
    Whereas in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence;
    Whereas such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and
    Whereas the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States; Now, therefore, be it
    Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,
    This joint resolution may be cited as the `Authorization for Use of Military Force’.
    (a) That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
    (b) War Powers Resolution Requirements-
    (1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
    (2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.

    • oldoilfieldhand says:

      Thanks Hugh and thanks Marcy! It’s nice to know that someone remembers what has transpired that isn’t a feature on cable news and reality TV.

  11. tanbark says:

    I wouldn’t count on it being a mis-statement Kagan is another of the “centrist” Clinton retreads with which Obama has larded his administration.

    The only thing I’ve heard that might indicate some sentiment for the left is that the goopers are accusing her of opposing the presence of military recruiters at Harvard.

    Which she is denying.

    • BMcGarth says:

      Well he larded his Admin with Clinton retreads cuz he was going to play the “game” just like BClinton.

      At every step he intends to shun progressives & embrace the corporatist.

      And that is exactly what he has done so far & will continue to do.

      Any progressive who has a conscience & pride will stop supporting this creep(Obama)….you can count on the progressive movement being pushed back another 12-18 yrs when this creep is done governing.

  12. BMcGarth says:

    Misstatement ?

    Or clearly not ready for Prime Time ?

    Seems like another corporate shill to me,courtesy of the corporate Prez.
    Progressives have no dog in this fight, support her & you are supporting
    subservience to corporations for another 40 yrs.

  13. oldoilfieldhand says:

    Kagan could double as a weather vane, an infallible indicator of the political winds.

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