Elena Kagan on Illegal Wiretapping

From Elena Kagan’s first comments about Cheney’s illegal wiretapping program yesterday (at 2:10), it sounds almost like she’d vote for rule of law in the al-Haramain case (though the case is probably in the gray area of cases on which she should recuse herself).

DiFi: And we have just had a case. It came–by a District Court Judge in California, as of March 31 of this year, the al-Haramain case, and Senator Specter and I have discussed this. It’s my understanding that what the judge did here was find the Terrorist Surveillance Program illegal, and essentially say that the plaintiff was entitled to damages from the government. So I guess the question might be whether that case goes up to the Supreme Court or not. But clearly the judge here dealt with something that was outside of the scope of law–which was the Terrorist Surveillance Program–and made a finding that it was, in fact, illegal.

Kagan: I believe that is what the judge said in that case and that case is still pending of course and might come before the Court. I think that the appropriate analysis to use with respect to that case or many others in this area would be the Youngstown analysis which makes very important what Congress has done. Where Congress authorizes the President, it’s one thing, where Congress has said nothing, it’s still another, where Congress has specifically barred the activity in question, you’ve got a much much higher bar for the President to jump over in order to find the action Constitutional.

After all, as DiFi with her historic concern for FISA being the “exclusive means” to conduct wiretapping seems intent to remind Kagan,  warrantless wiretapping was specifically barred.

But maybe not. Later in the hearing, Arlen Specter asks Kagan specifically whether she would have granted cert in ACLU v. NSA, the 6th Circuit case.

She immediately retreats to the jurisdictional issue–precisely the reason the 6th Circuit overturned Anna Diggs-Taylor’s decision in the case.

Specter: I don’t care what’s often a reason. We have a specific case, you’ve had a lot of notice, it’s in concrete. Would you have voted to grant cert?

Kagan: Senator Specter, I can just tell you, there was this jurisdictional issue, now the jurisdictional issue itself was an important one. It was an important one because how is a person going to know whether there is a person that was being surveilled?

Of course, the Bush and Obama Administrations have repeatedly prevented plaintiffs from obtaining the information they needed to prove they were surveilled (or tortured or rendered). Which, if you buy the 6th Circuit decision, then you’re also going to buy a bunch of the other decisions that have allowed the Executive Branch to hide its crimes.

Plus–as bmaz will no doubt point out when he stops by–there’s still the possibility that Kagan would argue the AUMF authorized wiretapping that Tom Daschle tells us it pointedly didn’t, which is the argument the Obama Administration still has on its OLC opinion books.

48 replies
  1. BayStateLibrul says:

    What would Thurgood say about illegal wiretapping from the rapping

    Order in the court! MC Kagan in the house!
    Thank you all, here’re the principles that I espouse!
    The Supreme Court is where I’ve always wanted to be
    I just wish I could serve with Justice Stevens — J.P.
    I’ve wanted to be on the court since I could toddle
    And his humble independence was always my model.

    Order in the court! I was a Harvard dean!
    Don’t bother me with questions ’bout the way I lean!
    Now of justices defunct I’ll say, to one I’m partial
    And he goes by the name of Justice Thurgood Marshall…

    by Alexandra Petri

  2. BoxTurtle says:

    She looks and acts more like a political weasel than a potential justice. I keep expecting her to say “I don’t recall” or to claim executive privilege.

    If she says something, it’s not that she believes it (though she might), it’s that she thinks that’s what she should say to keep things running smoothly.

    Boxturtle (The phrase “carefully bland” comes to mind)

    • NorskeFlamethrower says:

      Citizen BoxTurtle:

      While I have the same misgivings about Ms. Kagan that you do, “if she says something, it’s not what she believes” cuts both ways and, frankly until we ken shrink the military and cut it away from the corporate shadow government of the CIA, I will take an intelligent, political and cunning “liberal” on the court. And, by the by, I think we have begun to exploit the fracture in the military with the boxing in of Petreaus and the playin the old guard military like Gen. Jones against the corporate slimeballs like Petreaus…the military is broken and the treasury is broke so the old money in the military is beginnin ta come down against the corporate masters of the Universe.

      • BoxTurtle says:

        I will take an intelligent, political and cunning “liberal” on the court

        Yeah, but she ain’t none of the three.

        Boxturtle (I was gonna say she had a CRAFTSMAN tattoo, but there’s no return on this tool)

        • BayStateLibrul says:

          Must disagree. If confirmed, she will vote with the liberal bloc.
          Once she is confirmed, she can decide based on her background without the political swing…
          She’s no dummy from what I heard, but I’n not a lawyer so my opinion
          is tainted… but I like her, like I like Sotomayor and believe the more
          females the better. Men have really fucked up the world (in my opinion).

  3. Mary says:

    Youngstown and … c’mon Elena, Youngstown and …

    Number that comes after 3, governing document for our country – c’mon, you can do it…
    Or maybe not.

    “Where Congress authorizes the President, it’s one thing, where Congress has said nothing, it’s still another, where Congress has specifically barred the activity in question, you’ve got a much much higher bar for the President to jump over in order to find the action Constitutional.”

    No, hon, when Congress has specifically barred the activity in question AND the Constitution speaks directly to that activity, you have to look to the Consitution before you make the decision, not just a steel mills case that didn’t involve any activity to which the Constitution speaks directly.

    If DiFi had a Graham streak, there could have been some very good discussion on this – on a literal construction of the warrant clause, on activist judges reading out the warrant clause, etc. and DiFi could definitely have followed up on the Exec crime aspects – since supposedly Congress is going to be [yawn – DemocratVanWinkle]looking into legislation on classification and she’s, ya know, kinda sorta involved in that, what with judiciary and being head of intel and all.

    How do you say, “the judge here dealt with something that was outside of the scope of law–which was … in fact, illegal” and not get into the issue of whether or not the President has the power to classify illegal activity; whether the Executive has the power to refuse FOIA responses to citizens against whom it has engaged in illegal activity; who has responsiblity for illegal behavior crafted at the top levels of the Exec branch; whether Kagan believe impeachment is a sole remedy against an Exec who has committed a crime or whether they are also subject to the law as other citizens for their illegal acts; what are the remedies for individuals harmed by illegal acts of the Executive; whether or not sovereign immunity extends to protect actions barred by the Constitution; what factors would go into a determination to toll statutes of limitations for Executive crime where the office of the Executive engaged in cover up of those crimes; what are the duties of lawyers for the Executive branch when it has engaged in crimes vis a vi those lawyers interactions with Congress and with the Judiciary and with the victims of those crimes – etc.

    It’s not that these hearings CAN’T be worth anything – as Graham has shown, they can be worth a lot. You just have to have Democratic Senators even marginally as committed to nailing something down as he was.

    We don’t.

    The last of the “as much as you may not like them, you HAVE to vote for Demcorats for the children Sup Ct appointments is out the window with Kagan.

    Sotomayor was Obama’s blatantly political effort to keep Latino votes – but she’s fine and well qualified.

    Kagan is Obama’s personal get out of jail for Executive crimes I’ve particiapted in (assassinations and assassinations gone wrong) and covered up. That’s unforgiveable. The Republicans didn’t let Bush get by with it via Miers – the Democrats are making sure Obama does get by with it via Kagan. And she’ll be there a long time.

    • emptywheel says:

      And of course, DiFi’s was easily the most significant question Kagan got. Feingold wasn’t as good, uncharacteristically. Whitehouse used his half hour to try to use highfaluting language to get Kagan to badmouth her future colleagues.

      And everyone else just wants to lecture Kagan about how badly Leegin and Citizens United were decided.

  4. Petrocelli says:

    On the bright side, Kagan will team up with Scalia to regale Roberts & Co. with their
    humorous act … Who’s on Faust !

    • Jeff Kaye says:

      Perhaps you are being ironic?

      The Horton article notes that Fitzgerald went after the domestic charges of police abuse and torture in Chicago, but when it comes to the Federal government, things are different.

      From the Horton article you link to:

      Fitzgerald is also special prosecutor in an investigation into the involvement of CIA agents in the torture —- and occasionally the torture-homicide — of prisoners held in the war on terror. Amazingly, however, rather than the allegations of torture, Fitzgerald is going after the efforts of private investigators, working under the instructions of counsel for the prisoners who were on the receiving end of these techniques. The preposterous theory on which Fitzgerald’s inquiry is premised is official impunity taken to a wild extreme — CIA officers argue that their identities and their involvement in the torture episodes are matters of the highest secrecy, and any effort to learn the facts about them is a crime. In other words, just like the Cook County prosecutors who sought to harass and criminalize those who investigated torture in Chicago, Patrick Fitzgerald is being charged to harass and criminalize human-rights investigators who have probed the use of torture techniques by CIA agents….

      It’s almost impossible to imagine the Fitzgerald investigation coming to criminal charges against the investigators of the torture episodes—a prosecution that would contradict basic notions of legal process and the rights of the accused to mount a defense, and would amount to a resurrection of the Court of Star Chamber. But the Fitzgerald investigation almost certainly has a more immediate purpose: to frustrate the attempts by victims of Bush-era “enhanced techniques” to mount a defense.

      It is far past time for the myth of the Boy Scout prosecutor to be cast aside. Mary @7 mentions some other good reasons as well.

      • emptywheel says:

        I’m not certain, but I think Horton misunderstands the play in Fitz getting that post. I think it was just an attempt to shut CIA up, bc DOJ found no there there.

        • Jeff Kaye says:

          You may be right, and I have to admit, I just heard the same analysis talking to a journalist friend the other night, so maybe that is the case. Fitzgerald has a lot of experience working with CIA/classified material cases, but still…

          I hope you’re right and DoJ found nothing (really, how could they?), but the CIA is hollering holy murder, and it’s true the Obama administration doesn’t want to do anything that could be seen as pushing accountability. Horton’s point appears to be there’s no real prosecution in here, just the whiff of governmental repression, enough to keep anyone truly interested in pursuing governmental malfeasance by certain CIA actors in this area at bay — lest they should have to have the government breathing down their back.

          As one of the brave ones, EW, you may forget how pusillanimous most people actually are — not that I totally blame them. One has bills to pay, children to raise. But the Lifton/John Adams Project investigation is a terrible blow against attorneys’ right to serve the most outcast, and their ability to build the best case for their clients in the face of governmental stonewalling and obfuscation.

      • BayStateLibrul says:

        Yeah. I got mixed emotions about Fitzy. Believe he is no liberal, but fair and can’t understand why he didn’t rip Rove…
        With his marriage maybe he will mellow…

  5. JohnLopresti says:

    BLT mentions senator Specter halting a reply to his question delving into the idea of increasing caseload of Scotus, instead embarking on an emblematic mention of executive branch communications intercepts. The journalist declares both topics were left in abeyance by Specter.

  6. Mary says:

    Why does Harry Potter and Delores Umbridge keep coming to mind?

    @7 – Wouldn’t be my pick – he was far too tight with far too many who were far too involved in illegal, immoral and unprincipled activity – from Mary Beth White’s oks to Scheuer to kidnap men and have them tortured and executed in Egypt to the Arar affidavits filed by Comey and forward. He argued strongly to get get torture confessions into the court in Saleh and to let Mossad come in an “testify” with indicia of credibility when everyone involved with his team and the court knew that they were under assumed identities, hooded, and under no compunction or consequence with respect to perjury – they could commit it with prosecutorial impunity. His defenses of the Patriot Act weren’t just perfunctory – they were from a believer.

    But spec doesn’t really matter – great minds like Chemerinsky would only get a shot if they were committed to a Republican ideology, committed lawyers like a Swift – ditto. The only Dems who are going to have the shot are shallow politicos who bring a direct political advantage to the Dems. Even the Republicans balked at Miers – the Dems don’t have even that much conviction and commitment to The Court.

    And Kagan is actually funny – if it weren’t so sad – to listen to as she rambled on aimlessly this morning FOREVER about interlocutory appeal from the 9th on its DADT ruling. She sounded like a first year. And to listen to the pontificating on her principles – she feel “so strongly” about something like the “let’s kill habeas” case that she had to go ahead and sign her name, personally, but she doesn’t feel so strongly about it that she thinks it would be a good idea to appoint a justice who won’t have to recuse.

    • bmaz says:

      Her analysis and argument skills on her feet, or even sitting down, are really shit. Maybe there was something to that whole “ought to have at least done some traffic trials or something in your legal career” before being plopped down on the highest stage in the land deal after all.

      • Twain says:

        I haven’t watched any of this but it sounds as if she hasn’t given them any real reason to vote against her. Is that correct? Just thought I would ask.

        • emptywheel says:

          She is smart. And charming, and funny.

          But I still have concerns about her position on executive power. I have more HOPE that she’ll surprise me, but some real concern.

          Though FWIW, when Specter asked her AGAIN about the Diggs-Taylor ruling, she seemed to suggest that she thought the question of how you get standing when an illegal program is so secret was worthy by itself of cert.

          • bmaz says:

            Yeah, you think she intimated that; she will sing a different song if she is ever in a position to rule on the issue.

        • earlofhuntingdon says:

          Straw man. The issue, as Greenwald repeatedly points out, is not her intellect. It is her courtier’s inability or limited ability to say no to power. It’s a problem she shares with Mr. Obama. It is also Obama’s claim that Kagan’s nomination will preserve the court’s delicate balance, which still considerably favors corporate interests, when it may well tip the balance further in favor of presidential and corporate power.

          • BayStateLibrul says:

            Pure conjecture.
            Once she is on the court, she can vote anywhichway.
            There is no indication that she will favor “corporate” interests, she
            argued that Corporations are not fucking people in Citizens…

            • earlofhuntingdon says:

              It’s pure conjecture to suppose that a lawyer who has spent a lifetime accommodating the interests of corporate power and remaining silent about her passions, whatever they may be, will suddenly “come out” as a passionate liberal once she is obtains a lifetime appointment to the Supreme Court.

              I hope she does. But she has not demonstrated the likelihood that that will be so. She has demonstrated a concerted willingness to hide her passions and to support the powers that be in whatever place she finds herself. She is more likely to be a spruce, bending to powerful breezes, than an oak.

              But the original point I was responding to is that Greenwald’s acknowledgment of her intellect was not at issue, nor is it a predictor of her behavior as a Justice. A better predictor of how she would utilize that intellect is her politics and her passions, both of which she has spent a lifetime keeping to herself.

              • BayStateLibrul says:

                I don’t see her sucking up to or accomodating “corporate interests”.
                As Dean of Harvard Law, working for Clinton, as Solicitor General…
                She has not taken a job in corporate law at a pretigious law firm…
                She has been in public service.
                Sorry, I don’t see her love of the corporation like Alioto, Roberts, et.al
                Don’t think she will be siding with them…
                As a judge, she will be hiding nothing, you can read her briefs if she is

                • earlofhuntingdon says:

                  That career path avoided the meager documentation Mr. Roberts left in the wake of his. It certainly also made Ms. Kagan a fracion of the money she could have made in the private sector, a choice more common among liberals than conservatives. I hope that’s her bent, because law at the complexity and moment of the Supreme Court is as much about political choices – who or what does the law protect, who and how does it restrict behavior – as it is about parsing purportedly context-free wordsmithing by parliamentary committee.

                  Within that choice, Ms. Kagan chose differently than Diane Wood or Dawn Johnsen. She chose safe, pro-institution and pro-institutional leader choices. Given the assaults on constitutional rights by concerted pro-corporate interests. Decades of that may have kept her in her comfort zone and kept her on path to the Supreme Court, but choosing the safe and uncritical position may make the rest of us who live outside corporate boardrooms less safe.

  7. Caoimhin Laochdha says:

    I love the gentle, aloof references to felonies:

    . . . the judge here dealt with something that was outside of the scope of law–which was the Terrorist Surveillance Program–and made a finding that it was, in fact, illegal.

    When the administration commits a felony against me, it appears they are merely acting “outside the scope of the law.” Wrong.
    Federal law prohibits & criminalizes government spying on any of us except in specific circumstances. There are felony length prison sentences for this type of criminal conduct. Calling felonious conduct a “terrorist surveillance program” does not change a felony to something that is not a felony.
    The Bush administration believed that they could rob a bank and make their violent stick-up patriotically legal and constitutionally beyond reproach by calling it a “Program to Supplement Appropriations to Defeat Evil-Doers.

    • kindGSL says:

      I was illegally spied on and tortured too. I kept going to the press with examples but they had NO interest in covering it. I finally realized they were in on it, it was a torture ring conspiracy along with the APA and the police.

      I was tortured because of my religion.

      I am a US citizen and I live in California. I’m also politically active which is why I was tortured. I documented the whole experience by blogging about it on line. I wonder what she has to say about my case.

      I guess we will find out.

      Reverend Unruh
      THC Ministry

  8. Mary says:

    RE: Horton’s article – I hadn’t read it when I put up my comment, I was just responding in general to the “Fitzgeral for SUp Ct” aspect of the comment.

    I have to say, I’m more on the fence about Fitzgerald re: the JAProject. I think you could as easily make the argument that he was picked to shut up the CIA, as that he was picked to really be a thorn in GITMO lawyers sides and put the fear of God in them and take a few down if he can. IMO he’s going to be very vested – vested in trying to prove that he worked “just as hard” to “get” someone in this case as he did in Plame.

    He’s also been in the center of a prosecution – Saleh – where he (Fitzgerald) made sure to protect identities of Mossad that Saleh alleged had engaged in torture and yet still get the fruits of those allegation on the record, without any real or effective mechanism for the defense to cross or to have discovery, etc.

    While I guess you could make arguments either way, personally I don’t think he was given the investigation to just mollify CIA – I think he was given the investigation to do damage and that he will; that he was given the investigation to back down the victims lawyers – and I hope he won’t. But with a Kagan going to the Sup Ct, an Obama in office, and the “heroes” of DOJ no more than the ranks of Comeys and Goldsmiths and Margolis-s, and what has now become a tradition of torture support throughout the DOJ ranks (without anyone ever doing a public resignation because of it – not 1, not ever) – – I don’t see Fitzgerald as either just a placeholder or as a covert “anti-torture” operative.

    I think Horton’s piece probably has to do with mutterings of the guys who are already getting some damage and expect to get more. I think Fitzgerald is going to feel more compelled than most to “make sure” he gave it a solid swing.

    In the end, I have the same reservations I’ve had with everyone who stayed on with a torture adminsitration or even who left it (for slots at Lockheed, Harvard, Chevron, Pepsico, etc.) and have never found a voice to speak out against torture as a tool for America’s Executive branch.

    I’m just inherently distrustful of people who can so easily accomodate themselves to working for torturers.

    • Jeff Kaye says:

      In the end, I have the same reservations I’ve had with everyone who stayed on with a torture administration or even who left it (for slots at Lockheed, Harvard, Chevron, Pepsico, etc.) and have never found a voice to speak out against torture as a tool for America’s Executive branch.

      I’m just inherently distrustful of people who can so easily accommodate themselves to working for torturers.

      And also to the fact, as you point out, “what has now become a tradition of torture support throughout the DOJ ranks (without anyone ever doing a public resignation because of it – not 1, not ever)” — quite incredible, isn’t it? A terrible indictment of our entire society, I’d say. Or certainly of those upper layers. The poison that was the failure to hold U.S. war criminals responsible for their crimes in Vietnam/Cambodia/Laos has seeped deeply into the marrow of the society, and I’m beginning to feel the patient is incurable.

    • Gitcheegumee says:

      THIS may be of interest to you,via TPM Muckraker:

      Bush Administration
      GAO Study Finds Improper Burrowing During Bush Years
      Justin Elliott | June 29, 2010, 10:02AM

      George W. Bush
      A study by the Government Accountability Office has found seven instances of improper burrowing — political appointees shifting to career civil servant positions in a given agency — during the Bush Administration, though none of the seven occurred close to the 2008 presidential election.

      The GAO did an exhaustive study of these so-called “conversions” from political to career positions between May 2005 and May 2009. It found 139 conversions in that period, with the most — 32 — occurring at the Justice Department, and the second-most, 17, occurring at the Department of Homeland Security. The GAO found the vast majority, 117, followed “fair and open competition” and proper procedures to ensure that the conversions were justified.

      Read more »

      • earlofhuntingdon says:

        Not addressing such blatant improprieties, as well as blatant illegalities, is a hallmark of Mr. Obama. It would be rude and distract from his efforts to work on the things he finds important. That so much of the wrongs of Mr. Bush he favors, finds unobjectionable or not worth bothering about says more about his beliefs than his choice of what to spend his declining capital on.

    • b2020 says:

      If one considers Kagan as an apparatchik, the same question can reasonably be asked of Fitzgerald. Diligence in prosecuting the law is but a secondary virtue; it does not relieve us from the duty to question the law, to strive to change it when we think it is necessary, and to refuse to participate in its implementation when the law is not just. It is not enough to obey the law, just as it is not enough to follow orders.

      • bmaz says:

        All this moralistic imperative discussion about Fitzgerald is pretty curious. The man is a prosecutor and is generally responsible for the Northern District of Illinois. In addition to that, he has been given specific assignments by his superiors at DOJ Main, which he has, by all available evidence, worked on in a professional and competent manner. That is really it. Ascribing to him the responsibility for all these other things or conjuring him into some master cog in an intentional philosophy strikes me almost silly.

  9. bobschacht says:

    I finally finished reading Obama’s Dreams from My Father. I still think that people who have decided they know the measure of Obama don’t know as much as they think they know. However, I see much ambiguity. Towards the end of his book, a few sentences show both the yin and yang of his attitude towards Law.
    From p. 437:

    The study of law can be disappointing at times, a matter of applying narrow rules and arcane procedure to an uncooperative reality; a sort of glorified accounting that serves to regulate the affairs of those who have power– and that all too often seeks to explain, to those who do not, the ultimate wisdom and justness of their condition.
    But that’s not all the law is. The law is also memory; the law also records a long-running conversation, a nation arguing with its conscience.

    And on the next page:

    How do we transform mere power into justice, mere sentiment into love? The answers I find in law books don’t always satisfy me– for every Brown vs. Board of Education I find a score of cases where conscience is sacrificed to expedience or greed. And yet, in the conversation itself, in the joining of voices, I find myself modestly encouraged, believing that so long as the questions are still being asked, what binds us together might somehow, ultimately, prevail.

    What I fear Obama does not fully understand is that action– or lack thereof– can be cumulative, and can box you in, leaving less freedom to maneuver in the future. Already, he is being hemmed in.

    Bob in AZ

    • earlofhuntingdon says:

      In both those excerpts, I hear Obama the brilliant student who never practiced the law he studied. He understands both sides, but doesn’t want to limit himself or the law by choosing one or the other. That’s not a choice really open to a lawyer or a politician. Not choosing is choosing. It lets the powerful play on, laments the lot of the unpowerful, and does nothing for them.

      Reality and the law – the setting and keeping or ignoring rules that limit power – for example, are inseparable and equally unruly, no matter how finely worded may be the scholar’s opinion, the lawyer’s argument, the judge’s decision or the politician’s action.

      Mr. Obama has made his choices; as you say, lack of action is action. He can pretend not to live with them. We haven’t his talent or his seemingly limitless potential, but we do have to live with his choices and how they limit ours.

  10. b2020 says:

    Let’s recap the experience Horton had with the Mukasey nomination: Everything you know is wrong. By their sponsors know them.

    Daschle and Lieberman sponsored Obama. Obama sponsors Kagan. QED.

    You can analyze the kabuki all the way to the confirmation, but unless you approve of the person doing the choosing, there is absolutely no reason to trust the chosen.

  11. bmaz says:

    Plus–as bmaz will no doubt point out when he stops by–there’s still the possibility that Kagan would argue the AUMF authorized wiretapping that Tom Daschle tells us it pointedly didn’t, which is the argument the Obama Administration still has on its OLC opinion books.

    Yes, this is what bmaz would say. He would also say that Kagan did not really even come close to answering the question and her bit on the jurisdictional conundrum for plaintiffs in no way whatsoever lends itself to the conclusion she would do anything but hew to the Bush/Obama line. In fact, as she had to work so hard to avoid saying anything useful, and she could have even within her self imposed bullshit parameters for answering questions, I would actually argue that she seems to have no problem with the use of secrecy/states secrets to prevent plaintiffs from availing themselves of their Constitutional and legal rights. to Cole and all the happy hopey/changey folks out there that think she said something positive, she really didn’t

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