Even the Crusades Weren’t “Forever”

I’m going to assume John Cole was asking sincerely when he posted this request.

Can someone explain this reaction from Emptywheel:

After prompting Kagan to deliver the standard justification for detaining enemy combatants during war and rewarding her with a condescending compliment, Lindsey starts by getting Kagan to agree that the war on terror will never end.

Lindsey: [Speaking of her rote recitation of the basis for indefinite detention] That’s a good summary. The problem with this war is that there will never be a definable end to hostilities, will there?

Kagan: [Nodding] That is exactly the problem, Senator.


What a breath-taking exchange! Rather than challenge Lindsey on his slippery definition (referring to “hostilities” rather than war), rather than challenging him on the premise, Kagan simply nods in agreement. One minority party Senator and the Solicitor General sat in a hearing today and decided between them the state of hostilities under which the Executive Branch has assumed war-like powers to fight terrorism will never end.

The police state will continue forever.

Maybe I am misinterpreting these remarks, and you have to watch the video, but didn’t Kagan just say it is a bad thing that we are currently engaged in never-ending hostilities? Don’t we agree that is a bad thing? Isn’t Kagan right? What should she have said?

The question of whether the GWOT will have a “definable end” that justifies indefinite detention means two things in practical terms. First, how long will a state of war exist that justifies our holding of 48 Gitmo detainees who can’t otherwise be prosecuted. And second, how long will a state of war exist that justifies holding people at Bagram, including bringing them to Afghanistan after being captured in other locations, for indefinite detention.

48 Gitmo detainees

So how long will we have a legal claim–both within US and international law–to justify holding the 48 detainees at Gitmo that we currently can’t charge but deem too dangerous to release?

As I pointed out in this post, the Gitmo Review Task Force Report provided the following reasons why we can’t charge these men:

  • At least some of these detainees can’t be charged because evidence against them is tainted (this probably includes people like Mohammed al-Qahtani and Abu Zubaydah).
  • For others, we only have evidence they were members of al-Qaeda, and not that they engaged in any actual terrorism against the United States, even including actions taken after October 2001 which might be legally considered self-defense but which in some cases (such as with Omar Khadr) we’ve chosen to label as terrorism. If these people had engaged in the same activities for which we’ve got evidence after October 2001–and especially after December 2004–we might be able to charge them, but they haven’t.
  • For a number of these men, we had evidence that we could have used to charge them with material support for terrorism but held them so long without charges that the statute of limitations has expired.
  • For some of these men, we purportedly could have charged them with material support, but did not because of “sentencing considerations,” which I take to mean we believed that the 15 year maximum sentence was too short, and so have not charged them (note, the Obama administration has not gone to Congress and asked for a change to this sentence).

Given that we can’t try these men, we are instead justifying holding them under the law of war. As Kagan explained,

Under the traditional law of war, it is permissible to hold an enemy combatant until the end of hostilities and the idea behind that is that the enemy combatant not be enabled to return to the battlefield.

And, as she made explicit elsewhere in this exchange and repeatedly during her hearings, our ability to invoke the law of war depends on our ability to invoke the AUMF passed after 9/11, which states,

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. [my emphasis]

We can only legally use this justification against people who either by themselves aided 9/11, or were members of an organization or nation that aided 9/11.

Now, we’re already pushing this, as the government’s lousy 14-36 record on habeas cases makes plain. For example, the Gitmo Task Force claimed the ability to hold people who simply have a “history of associations with extremist activity” without requiring that they have actually either membership in al Qaeda or direct participation in 9/11.

But to envision that the hostilities authorized by the AUMF will not end, you have to envision both that the  al Qaeda and affiliates that existed at the time of 9/11 will exist indefinitely, and/or that we will remain at war against the Taliban forever.  In some cases, this is obviously not going to be the case. Hamid Karzai is already talking about bringing Gulbuddin Hekmatyar into government. If he does so, will we still have justification to hold the members of Hezb-e-Islami Gulbuddin who are among the 48? Discussions about a deal with the Taliban are less optimistic, but if we really do withdraw in 2011, will we still have the basis to hold the Taliban members who are among the 48? If we kill or capture Osama bin Laden and Ayman al-Zawahiri, will we still claim holding someone who served as OBL’s guard in 2001 is too dangerous to release?

But even the al Qaeda and affiliates described in the AUMF seem to have a definite endpoint. After OBL and Zawahiri are gone and we’ve managed to kill our 217th “al Qaeda Number 3” will we still be able to say that the al Qaeda that hit us on 9/11 still exists? At some point, judges are going to consider the al Qaeda copycat groups that pop up in various locales to be too tenuously connected to the al Qaeda of 9/11 to be meaningfully the same group anymore.

Bagram detainees

Which brings us to the Bagram detainees, who are significant for two reasons: because the government is considering what happens to these detainees when we leave Afghanistan and because in the Bagram suit discussed here, the government is testing the limits of what constitutes a “battlefield” on which we can capture people and hold them and where we can do so.

As I’ve already noted, the Administration is already contemplating what it will do its Bagram prison when it withdraws (assuming that ever happens). If and when the US ever does withdraw from Afghanistan (and we’ll have to when we go broke if not before), then it will at least lose the excuse the DC Circuit has endorsed thus far, that Bagram is on an active battlefield and therefore the US can’t give detainees there a meaningful legal review. And once they do get a meaningful legal review, you’re likely going to be back in the position our legal basis for holding most of the people will no longer be valid (particularly since we moved the more senior people al Qaeda to Gitmo, so more of the Afghan detainees have Taliban connections).

Or you’re going to be in a position where, in the interim and possibly already, the US is using Bagram the way we used to use Gitmo–as our storehouse for everyone we’ve captured in the larger war on terror. Even the DC Circuit envisions a problem if someone proves the US has captured him and brought him to Bagram precisely because it was in an active theater of war and therefore would not be granted habeas rights.

We do not ignore the arguments of the detainees that the United States chose the place of detention and might be able “to evade judicial review of Executive detention decisions by transferring detainees into active conflict zones, thereby granting the Executive the power to switch the Constitution on or off at will.” Brief of Appellees at 34 (quotation marks and citation omitted). However, that is not what happened here. Indeed, without dismissing the legitimacy or sincerity of appellees’ concerns, we doubt that this fact goes to either the second or third of the Supreme Court’s enumerated factors. We need make no determination on the importance of this possibility, given that it remains only a possibility; its resolution can await a case in which the claim is a reality rather than a speculation.

If we’re holding people at Bagram who are not tied either to the Taliban or to the al Qaeda and affiliates that existed in 2001 and supported the attack, then they are going to become a legal problem either when they manage to sue for habeas or when we leave Afghanistan.

And to fight to do so would also amount to a fight to hold people whom we choose not to charge with material support for terrorism (for which SCOTUS, partly through the work of Kagan, has recently endorsed a troublingly broad definition). The biggest reasons to do that, it seems to me, are that we either don’t have evidence that the person in question was actually supporting terrorism–in which case we may be holding people by mistake–or we want to hold them longer than Congress has said material support for terrorism merits doing.

But both of these–bringing people to Bagram or some other location to hold indefinitely, or holding people either because we can’t or don’t want to charge them with material support for terrorism–entail a certain view about counterterrorism.

The endless war on terror is–right now–an illegal war

Which brings me to the reason why I have such problems with this and why I find this exchange so breathtaking. Our efforts to protect the country from terrorism–even if you limit it to Islamic extremist terror–may well be a nebulous and long-lived (but hopefully not endless) effort. But our legally-authorized war against the Taliban and members of the al Qaeda and affiliates who existed and supported 9/11 is not. Under international law and–to a lesser extent–US law, the President (Democratic or Republican) can only use war powers to fight these targets so long as they fall within that description. To envision an endless war against terror–or even a war without a “definable end to hostilities”–is to envision either the use of powers limited to specific targets to fight a much more amorphous target or the passage (which I imagine our belligerent Congress would do with glee) of another AUMF.

Yet already, the Obama Administration is–according to John Bellinger–applying the 9/11 AUMF to entities not included in the statute.

Former Bush officials, still smarting from accusations that their administration overextended the president’s authority to conduct lethal activities around the world at will, have asked similar questions. “While they seem to be expanding their operations both in terms of extraterritoriality and aggressiveness, they are contracting the legal authority upon which those expanding actions are based,” said John B. Bellinger III, a senior legal adviser in both of Bush’s administrations.

The Obama administration has rejected the constitutional executive authority claimed by Bush and has based its lethal operations on the authority Congress gave the president in 2001 to use “all necessary and appropriate force against those nations, organizations, or persons” he determines “planned, authorized, committed, or aided” the Sept. 11 attacks.

Many of those currently being targeted, Bellinger said, “particularly in places outside Afghanistan,” had nothing to do with the 2001 attacks.

Once you’ve accepted that the basis for these expanded powers rests in the 2001 AUMF rather than Article II (and to her credit, Kagan explicitly endorsed the AUMF basis for those powers repeatedly in her hearings), then you can’t willy-nilly apply it to Islamic terrorist organizations that had no tie to 9/11. If you could, then you’d not only be violating international and (to a lesser degree) US law, but you’d also be on a slippery slope in which you had embraced the view that the President had those powers against terrorists writ large. One day the US would be holding some Hizbullah terrorist as a favor to Israel, and the next it’d be collecting FARC members threatening oil companies. Further, once you asserted the President could indefinitely detain Islamic extremists who had no tie to 9/11, you’d quickly get where Lindsey wants to go, to the indefinite detention of US persons. And once you’re at indefinite detention of US persons, some wingnut is going to argue that tree-hugging terrorists or anarchists or Quakers can be detained too.

Mind you, that’s farther than I believe Lindsey and–especially–Kagan want to go. But that’s why we have a legal system, so we don’t set off on a slippery slope that erodes the protections afforded by the law. The urge to hold people under the law of war, whether or not it applies, is an urge (and this is definitely where Lindsey is) to establish special treatment for terrorists outside the protections of our legal system. And then the only thing preventing a police state from breaking out is trust in the good faith of the President who secretly defines whom he believes is a terrorist.

What was Kagan thinking?

Which gets me to why I was so shocked by this and what I think Kagan could have said. I can think of three possible interpretations of Kagan’s quick agreement that there will never be an end to these hostilities:

  • She just agreed to shut Lindsey up.
  • She agreed that the 2001 AUMF can apply generally to the war on terror.
  • She agrees with Lindsey’s view that all Islamic extremist terrorism should be treated under the law of war.

The first is a possibility–I’m certainly in favor of strategies to shut Lindsey up. That wouldn’t endear me to Kagan as a nominee, mind you, but it’s the most charitable interpretation of this.

But Kagan’s response–the elaboration that John finds so comforting–suggests she does buy the underlying assumption that the AUMF will apply even after our war against the initial targets in that war is over. Now, her apparent unwillingness to endorse the “world is a battlefield” viewpoint as her own belief may reflect some doubt on this point. But it seems to me the correct legal response to Lindsey’s comment was that first the AUMF (and therefore our right to hold people indefinitely) only lasts so long as we’re fighting those targets defined in the AUMF. “Hostilities” against Islamic terrorists alone do not authorize such powers. Hostilities are not a legal war. So while we have to think about the things Kagan talked about–some kind of interim review until the time as we kill OBL, for example, we also have to think about what happens to these people–some of them admittedly dangerous–after such time as that legal war ends. And we probably need to talk about what the legal status of our efforts to protect the country against terrorist attacks will be then, too.

I don’t, FWIW, believe that Kagan believes uncritically in treating all Islamic extremist terrorism under the law of war. Her caution about people captured in the US suggests she considers it a live legal question (though none of us know how she’ll decide if and when such a case gets to SCOTUS). But that’s why I would have preferred a little more caution in this exchange, in the larger question of precisely what the AUMF says. SCOTUS has stuck closely to those limits in its rulings on counter-terrorism, and though Lindsey may not have liked it if Kagan had responded by pointing that out, it would have been, IMO, a much preferable response than her easy agreement.

  1. MaryCh says:

    SG Kagan isn’t the firebrand most of us would’ve liked, by any stretch. Even chuckly Chinese restaurant jokes with Sen. Graham strike some of us as a little too much an indicator of comfortably-numb-in-the-Village.

    But like President Obama and Justice Sotomayor she’s got world class political antennae, and isn’t going to say anything more than is necessary to get confirmed. And terrorism is a singular topic, though no longer white hot, and any preconfirmation statement questioning the lifespan of the GWOT would provoke a ZOMG reaction comparable to Disney defending the indefinite extension of their intellectual property rights to Mickey.

    {BTW, I prefer my metaphors both shaken and stirred. And since I haven’t said so recently: Thank you, Marcy, for your indefatigable blogging.}

  2. JThomason says:

    I have been mulling over where Sen. Graham was coming from. Surely he is caught in some kind of Corporate Theology serving these perpetual entities. Its a doctrine of perpetual ownership, transcending the rule against perpetuities and circumventing all equity in the fiction of the immortal corporate person. It is a fiction that defeats history, except that Fukuyama recanted. He advocates the naked politicizing of the judiciary as being a hand servant of the presidency in characterizing the political agendas of Roberts and Alito.

    Surely Lindsey is nothing more than a whimsical dialectician in the service of a new species of “divine right”. The divine right of the commercial elite to succeed in there power without the vicissitudes of history or justice. The American Civil consciousness is greater than these fawning paeans to a tyranny of an elite class. It is contrary to our customs, our traditions and our history. I grieve that understanding is not apparently sufficient to stem the tide.

  3. WilliamOckham says:

    The difference between your interpretation and “The Village” interpretation of all this is simple. You’re overlooking the key phrase in AUMF:

    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. [WO’s emphasis]

    You see, you’re mistaken when you think the AUMF is limited to just those nations, organizations, and persons who were involved in the 9/11 attacks. Instead, the President can attack any person he wants as long as “he determines” they were involved, even if they weren’t involved at all. I’m not even being sarcastic here. I really think that’s how they all look at this.

    • emptywheel says:

      Right you are–which is why I said this:

      And then the only thing preventing a police state from breaking out is trust in the good faith of the President who secretly defines whom he believes is a terrorist.

      That said, that is pointedly NOT what SCOTUS has said on this matter. And for all the discussion of precedent, Kagan chose not to refer to the limitations in existing SCOTUS decisions to answer this question.

      • bmaz says:

        Yes, and as I pointed out somewhere on the Kagan Wiretapping thread, the crafted dodging non-answer speaks volumes.

        • mattcarmody says:

          Exactly how are we, as a country, permitted to carry on these two wars which are not sanctioned under international law? I’m not a lawyer but from what I’ve read in international law textbooks, books on occupation and the law of war on the battlefield, including the AUMF and the UN Charter on how and when war is justified, I don’t see us authorized to be doing any of what we’re doing.

          • bmaz says:

            International law and other people’s rules do not apply to the United States in the view of the US government. And the sad fact is there is nobody and no good mechanism even if there were somebody for actionable accountability for the US disdain. It is not the way it should be, but it is, regrettably, the way it is.

      • BoxTurtle says:

        I think she’s saying she’ll ignore that precident and overturn it if she gets the chance.

        There’s simply too much support in congress and the executive for the GWOT, ObamaLLP would not have nominated anyone who would interfere with that. If the senators cared, they could explore that in their questioning. It’s really sad that Lindsey has been the best questioner so far.

        Boxturtle (Starting to think congress should just sit as a jury and let a PROFESSIONAL conduct the questioning)

    • earlofhuntingdon says:

      I would also emphasize this phrase:

      in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

      The association or entity’s tie to 9/11 and its ability, however stretched or whomever defines it, to threaten such attack again, is “the enemy” as defined by this AUMF. It’s not a state of war, Congress still hasn’t authorized war as such, but it’s statutory authority. The time limit on that is vague, but it certainly extends beyond the lifespan of bin Laden. Arguably, it extends to associations or entities the original ones morph into, though not new, unrelated entities that may pursue the same or similar goals.

      Whether the conduct of such hostilities by the president violates other laws, including the laws of war and various treaties, is another question the US judiciary seems unwilling to address.

      That said, my strong preference is that a better defense is through disciplined (ie, rule of law respectful) policing and prosecutions, not by getting out the expensive, blunt and intentionally brutal instrument of military force. Conveniently for some, that tool is enormously lucrative and harder to control through legal means, even were Congress willing properly to oversee its use. It is not.

      • emptywheel says:

        Except that, wrt indefinite detention, that’s not how the courts, thus far, have interpreted it.

        They might get there in Bagram. But even there, I’m not sure. And I think it would become harder still when we move the prison to–say–some corner of Colombia.

        • earlofhuntingdon says:

          It seems to apply as to the duration of the period of hostilities, which we claim justifies continuing detention. But I agree that we seem to be violating the laws of war in detaining prisoners on one battlefield when we claim to have acquired them on another. The whole thing is a shell game; will the Supremes stop the game or enable it.

    • Mary says:

      At the rate things are going, even if they weren’t born then.

      The issue isn’t just the open ended “he determines” which, per Boumediene and the ongoing habeas cases, has been pretty much ruled unconstitutional (Graham and Kagan’s plottings notwithstanding). It’s also the issue of “necessary and appropriate force.” Kagan and Graham are saying that detention = combatant, bc that’s who the laws of war let you detain.


      Kagan and Graham have just read out the standard of combatancy from the laws of war detention standards. Instead of there being a combatant (and a Geneva Compliant real trial with real tribunal for challenge if someone claims they were not a “combatant”) requirment for detention (during the never ending hostilities) they are claiming that anyone who a President thinks may have given material support – not just given to al-Qaeda and those who carried out 9/11, but given to anyone/any group the then President thinks is a terrorist – they can be detained without charge forever. That’s never been a rule of law standard – that you can pick up people not in uniform, not in combat, and hold them forever because they might “return” to the battlefield that you have now described as a worldwide battlefield, even though you’ve never shown they were combatants to start with.

      Really – Kagan is saying that Boumediene is wrong – bc she’s relying on the worldwide Grahamesque battlefield definition and if it applied, you wouldn’t have had the Boumediene ruling requiring habeas hearings for the GITMO detainees – bc they, too, would be in a “battlefield” – the one Kagan claims.

  4. JTMinIA says:

    You might not believe “that Kagan believes uncritically in treating all Islamic extremist terrorism under the law of war,” but I do. You might take “her caution about people captured in the US” as suggesting that “she considers it a live legal question,” but I don’t. The latter came up in the context of US citizens, so I don’t see it as saying anything at all about her beliefs concerning non-US citizens, which includes the vast majority of Islamic extremists. In other words, I see her repeated references to the AUMF in the worst possible light. She doesn’t see the limits that exist in the AUMF (which you pointed out earlier). Therefore, my prediction is that she’ll endorse a very loose definition of to whom the AUMF refers and happily let things continue as they have, even after every 9/11 conspirator is dead and gone.

    Yeah, she stood up to the military RE don’t ask / don’t tell. But that doesn’t mean that she isn’t a tool. It only tells me that (a) she’s a civilian tool, not a military tool and/or (b) there are some personal issues that can wake her up out of her tool-like stupor. When you get right down to it and don’t make it personal, she’s a political creature. I can see her allowing Obama send drones after anyone he wishes and then turn around in 30 months and not let the new Republican preznit do the same.

      • brantl says:

        No, I read the response, and EW is saying that Kagan must have meant a volume of things that the shortness of her (Kagan’s) response simply isn’t big enough to contain. And she still didn’t answer Cole’s point. His point was, “didn’t Kagan say this was a bad thing?”. She still hasn’t answered that.

    • emptywheel says:

      Maybe I am misinterpreting these remarks, and you have to watch the video, but didn’t Kagan just say it is a bad thing that we are currently engaged in never-ending hostilities? Don’t we agree that is a bad thing? Isn’t Kagan right? What should she have said?

      No, Kagan is not right. In the context of the question (that is, as it applies to indefinite detention) we are most assuredly NOT in a war that will have no definable ending.

      She should have said, “No, this war–as legally authorized under the AUMF–has some pretty foreseeable end. And so while we have problems with those that the President wants to hold indefinitely that an interim review might make better, the very thought of creating law to create this category of indefinite detention misunderstands the problem.”

      • earlofhuntingdon says:

        That it ought to have an end, rather than be a state of continual political prostration to the war powers of the president, is a political decision for Congress and the president, so long as there is a lawyer’s argument that we have not reached the “end point” badly articulated in the AUMF. Woe unto us if it becomes up to the slowly grinding wheels of justice.

        • emptywheel says:

          Writing this actually made me realize how difficult withdrawal from Afghanistan will make these questions.

          We will withdraw, though probably not by 2011. In fact, if Karzai doesn’t get control of the prisons on timely schedule, he’s going to have an even harder time holding onto power than he does now. And while we’re likely to engage in the same kind of kabuki we did in Iraq when Karzai takes over the prisons, it’ll be an interesting point of time wrt the war, at least as regards the Taliban. And from there, there is likely to be a panic about the AUMF more generally, and then I do expect Congress to pass some kind of new AUMF. There’s already been some talk, and I expect as complaints about our drones and whatnot continue, we’ll want to pass some new kind of legal cover to shut up our allies.

          • bmaz says:

            Count on it and Koh, Holder, Panetta, Obama and the rest of the cast and crew of this tragedy will go out and sell it “as the right thing to do in order to uphold our principles and the rule of law”.

      • brantl says:

        Holding someone “until the end of hostilities” can be, and often is, indefinite, and it’s always been constitutional before, hasn’t it?

        • bmaz says:

          No, it most certainly has not under these circumstances where there is no formal war declaration and the American court system is open and operating normally. That is exactly the point.

        • Mary says:

          EW posted a clip – we’ve also had more clips, but there has in addition been more overall testimony as well for all that context that you say EW is giving but doesn’t in your mind exist.

          As to the “didn’t she say it was a bad thing” no, she didn’t say “it” (i.e., whether “this war” would ever have a “definable” “end to hostilities”) was “bad” but rather:

          a) agreed with Lindsey’s legal conclusion that some undefined “this” (Afghanista, Iraq, Yemen Somalia, UK, US, etc.) is a constitutionally supported “war” as opposed to a limited authorized use of military force;

          b) agreed with Lindsey’s legal conclusion that the Sup Court and the rest of our government is incapable of generating a definite end, a “definable” end, to the state of war

          c) that doesn’t mean “indefinite” it means never; not that the end point is unpredictable, but that it cannot ever be defined, cannot ever be reached; and that the Courts, Congress and the Executive, together or separately, are incapable of ever generating a definite end to a Constitutional State of War – i.e., the two of them have just said that without any formal declaration from Congress the United States is now and forever will be in a state of war that has no definable end

          d) and no, Kagan did not say it was a bad thing, she agreed with Graham’s legal conclusions as to what the constitutional state of the nation was and what the constitutional state of the nation now will always and forever be (bc you can NEVER have a definable end, as she AGREED) – she never should have answered that one, either way – as per my above she could have gone with lots of non-commital responses)

          e)after agreeing with Graham that as a Sup Ct Justice she is now going in with the mindset that we are in a Constitutional state of war and that we will now, forever, be in that Constitutional state of war and nothing the Exec, Congress or the Courts can do will end that bc they are incapable of creating a definition to take us out of that state – – she then says, not that any of this is “bad” but that it’s a “problem”

          Gee – ya think? After mindblowingly, staggeringly AGREEING THAT THE COUNTRY IS NOW IN FOREVER WAR AND COURTS CANNOT DEFINE SUCH A STATE AWAY, EVER – she says, hmm, that’s a problem.

          And this is why she’s such a bad pick. And this goes to [email protected]’s question too, for me (not answering for EW and bmaz).

          She’s just debonairely painted herself into a corner that generally separates the first years who stay from those who get weeded out. She’s got a huge problem, bc she’s just agreed to a framing of the issues that allows for no resolution. She’s done that bc she’s never had to be a real lawyer.

          I don’t care that she’s never been a judge, as long as she’s familiar with and understanding of what case law really means, what precedent really means, what doctrines and bodies of law really mean – and she doesn’t. If she did, she’d never have leaped into that conclusory rattrap.

          She’s never had to really dig in and understand any areas of the law from a legal outcomes and legal effects standing. Rather, she’s spent her non-fundraising time as a political hack, an appointee/political policy supporter who has only had to worry about political framing – her “clients” from Clinton to Obama, have only had to worry about short term political consequences – not the effect for the decades and for the wrold on adopting a POLITICAL FRAMING as a LEGAL DOCTRINE.

          So she doesn’t even see the dangers or, imo, she basically is such a political creature that she sees them, but doesn’t really care. It’s that Exec branch mentality of “we can do anything and no matter what a disaster it is, the country will still survive and I’ll still have 50% or so of people say I was right and I’ll still have the right people invite me to dinners and hire me for talks and pat me on the back” She’s never had to really think through doctrine and application, to protect a client who does have to face real world consequences, to think through arguments in protection of her client in her one situation that might have ongoing and repetive effects for all her future clients as well.

          And other than being a political hack who hasn’t had to worry about the law – that doesn’t apply to your decisions to assassinate and kidnap and torture – she’s been a fundraiser. Like Obama, it has put her in the “suck up to big money” mode and she thrived there.

          Neither occupation has made her a good pick for the court and despite everyone wanting to talk about her being brilliant, her answer to Lindsey – gratefully jumping into his political framing of the issue – was so very very very bad as to be cringeworthy. And that’s what’s going on the court. No wonder the Republicans are so happy about it.

          • earlofhuntingdon says:

            Kagan seems never to have had a Barbara Ehrenreich experience, never been outside the relatively cozy world of upper West Side Manhattan, the Ivy League and inside the Beltway. Those experiences are great for developing quietly effective bureaucratic skills that promote a senior’s agenda while protecting one’s own turf. They are not so great at acquiring the broader set of professional experiences that would make her a better judge, not so great at helping her learn about and develop empathy for how average Americans live and get by and the legal issues that make that harder.

            I don’t mean empathy in a soppy way. I mean developing an understanding of how many Americans live. The law and the Constitution are meant to protect them, too, even when their interests conflict with the ambitions of her more overtly aggressive peers on Wall Street or inside the Beltway.

            Ms. Kagan may have that empathy. Nothing in her career, however, suggests she finds it worth speaking out about or acting on. There will be considerable pressure on the Court not to change the habit of a lifetime.

            • bmaz says:

              Yeah, what happened to all that “empathy” bullshit Obama relentlessly spewed about wanting a judge who understands and related to common Americans and their interaction with the law? Seriously, what happened to all that? Because it is damn near impossible to imagine a more uninvolved, inexperienced, cloistered and isolated elite with NONE of those traits and experiences than Elena Kagan. It was simply all a bunch of glib snake oil horseshit spin by Obama, the master of smooth but hollow and duplicitous speeches.

              • Gitcheegumee says:

                Speaking of hollow, I was just thinking earlier today that it feels to me that the entire government is becoming like a holographic illusion…there’s really no there,there.

                Hologram – Wookieepedia, the Star Wars WikiA hologram was a projected three-dimensional representation of a person or object, normally used in communication or entertainment.
                starwars.wikia.com/wiki/Hologram – Cached – Similar

                • bmaz says:

                  There is really something to that. A lot of sound and fury played out for show and little substantive (and even less that is commendable) occurring.

            • Mary says:

              I never understood on that “empathy” thing why the Obamaco crew never took control of that framing either. IMO, it’s a very easy response to say something like, *the Supreme Court, like all our courts, is a Court of Equity as well as a Court of Law.* Equity exists because the common law and the people demanded it from their courts.

              Or, for that matter, I can’t understand all the traction that “activist” judge gets – it seems so easy to respond by saying that the common law and our constitution were framed based on the understanding of checks and balances and a court that is inactive does not fulfill its Constitutionally required role of serving as a check and balance.

              @89 – Kentucky bbq is some of the best there is – and no real Kentucky BBQ joint survives if it doesn’t also have someone who can make out of this world Chess, Pecan, Coconut & Lemon pies. There aren’t as many of the really good places as there used to be, though.

              • fatster says:

                According to wiki, we have Arthur Schlesinger Jr. to thank for the concept “activist judge.” LINK. From my experiences in the Deep South, I assure you the Warren Court was hated vehemently by the deeply entrenched white power structure and condemned for its “activism” which threatened one of the main bases upon which that power structure existed. “Impeach Earl Warren” was proclaimed from huge billboards throughout the region, frequently embellished with hand-painted racial slurs.

              • Petrocelli says:

                I’ve never heard of Chess Pie before and it’s been years since I’ve had a decent Coconut Cream Pie [are ya listenin’, skdadl ?].

                I passed up an opportunity to visit Kentucky in the 80’s and always regret not doing so …

                • bmaz says:

                  My mother (who grew up there) used to say “Ain’t nothing like Derby Day at Churchill”. Well, that is how she would phrase it after a little lubrication of the alcohol variety anyway.

          • GulfCoastPirate says:

            Thanks for the explanation. I’m curious about this part of what you wrote:

            So she doesn’t even see the dangers or, imo, she basically is such a political creature that she sees them, but doesn’t really care. It’s that Exec branch mentality of “we can do anything and no matter what a disaster it is, the country will still survive and I’ll still have 50% or so of people say I was right and I’ll still have the right people invite me to dinners and hire me for talks and pat me on the back” She’s never had to really think through doctrine and application, to protect a client who does have to face real world consequences, to think through arguments in protection of her client in her one situation that might have ongoing and repetive effects for all her future clients as well.

            It seems to me, if what you say is accurate and I have no doubt it is, that history teaches no such thing. Countries don’t always survive their biggest mistakes. At least not in the current form as when the mistakes occurred. They change over time to comepensate for those mistakes and that change is not always positive.

            So why do you think Obama picked her and who do the Democrats have ready to go that has the intellect/experience of some of you around here. This business about perpetual war is ludicrous. It’s very hard for me to believe that the Democrats are letting the Republicans bring them along to this point of view. They must have a reason to want to be brought along. I just can’t figure out what that reason may be. I feel like someone who’s watching the end of the Roman Republic in real time.

            • john in sacramento says:

              I don’t know if this is an answer, but there was a very good kos diary a few years ago that talks about the larger subject


              The pathetic and quite ridiculous record of the Roman Senate’s capitulation to imperial power is rife with analogues to the collapse of the US Congress during the last two generations in matters of national security and international affairs. And this without the Romans’ excuse that they feared for their lives.

              During the Principate, the Roman Senate essentially struck a deal with successive emperors. Caesar could consolidate actual power and govern as he wished as long as Senators retained some outward signs of power and the status that went with the dignity of holding high office. The appearance of being consulted occasionally by the emperor, the public repute that came from “debating” matters of state, the feeling of importance, the Senators were willing to exchange for actual independence. Rather than try to check the emperor’s aggrandizement of power, they merely sought to be co-opted. “Deliberation” meant finding out what the commander in chief of the armies wanted and giving it to him – occasionally giving even more than he asked, just to flex the Senate’s atrophying muscles.

              Any fool of a Senator who made the slightest show of actual independence was immediately undercut by his fellows. So eager were they to win the favor of Power, and so painfully aware of the network of spies that potentially knew of every word they spoke.


              • GulfCoastPirate says:

                Great link – thanks.

                Yea, that’s exactly what I was trying to get at earlier. Everyone can debate the merits of Kagan but to me the real problem is the Congress and by extension all of us since we are the ones who send the people we elect to DC. How did it come to be that a person elected by the people speaks of perpetual war, thinks it is a good thing to give the executive these powers, and no one bats an eye (except for a few around here and elsewhere)? That astounds me.

            • Mary says:

              You know, you’re being nice about it, but obviously you went right to the where I was getting deep into “imo” territory and further away from concretely looking at what she did on framing. ;)

              To answer the easy part of what you asked first, the names bmaz offered up would be examples of good picks – most excellent in the case of Chemerinsky, who is brilliant. I also think that it would have been an aces pick for Obama to find and nominate someone with a military background (like a Swift) and yes, they make those in Democratic flavors. It would have been really good for the court, which is losing its only member with an institutionally developed understanding of military law – it would have been good for Obama and Democrats to be putting a military person on the bench and it would have been so entertaining, watching the Republicans and esp watching Lindsey fail at the dog and pony show he put on with Alito and now Kagan.

              On the issue of what history teaches v. my babble about what I think Kagan is not-thinking, ;) and the whys and wherefore’s of Obama’s selection, I’m obviously biased bc I really can’t understand and inherently dislike/distrust someone who makes their policy bed in the graves of habeas and the bill of rights and is happy working with developing new assassination policies with the old torture policy holdovers.

              So with that disclosure, I think people like Kagan and Obama are basically that short sighted – I think it’s what they share with Bush – and I think it comes from a personality type that is both very self centered AND very needy. I think Bush, Obama and Kagan all share a really extraordinary need to be liked by the “important” people. And I think they judge success or failure by that measure, not by an objective measure of what is happening or is likely to happen as a result of their decisions. So what I think and mean is that to the extent they can be and remain insulated from the collapse going on around them, it is not a part of their reality (Bush and Katrina, Obama and the oil spill, Kagan and her forever war) and the responsiblity for what does or doesn’t happen isn’t a responsiblity they seem themselves as bearing – in any way.

              They divorce themselves from the consequences of their decisions and the decisions are a success for them as long as they generate the right responses from the people they see as being “worth” something – as being important. But that’s all jmo, as opposed to the harder point on the framing, which is my much mor objective legal input to what she did.

              BTW – I first distrusted Obama when he was saying in 2004 that he wouldn’t really be doing anything different than Bush on the wars at that point, even though he didn’t initially support going to war. It was so opportunistic and political imo. Then I got over it a bit when he had his Lieberman/McCain squabble and he gigged McCain over being allowed to have a grouchy guy day now and then. But as he began to emerge as a possible candidate and was on for some interviews very early, it’s his body language that turned me off. I’d watch him, after being asked a question, finger steeple, set his face, and give a completely vacuous answer and I thought he was such a poseur.

              I pre-judged a lot of what I thought I could expect from both he and Clinton over their handling of the MCA, not being able to work effectively together to stop it and not really doing much at all (I know some groups said they felt Obama’s office at least met with them and gave them they impression he was going to go to the mat for them, but he had a lot of capacity for a public voice and he never used it). They were both just as useless earlier, over the DTA. And neither was ever a voice that spoke to torture, other than the completely disingenuous statements that the US doesn’t torture.

              Then the real slap did come with FISA and especially, as pointed out at 101, with his people’s “explanation” But by then, I had already been jumped on by some of his supporters for saying his rhetoric was all Bush rhetoric, just better articulated; that he was the conservative compassionate to Bush’s compassionate conservative. Still – he had a lot of great people supporting him. It would have been so wonderful if he had been even a small part of what they believed in.

              • GulfCoastPirate says:

                Well, I wasn’t trying to be ‘nice’ so much as I was genuinely curious.

                One reason I like coming around here occasionally when I get a chance is because people like you, EW, bmaz and some others still seem to ‘believe’. I’m not sure I do any longer. I’m not up on all the legal mumbo-jumbo. I’m a lot better at things like physics and math. I think I’ve simply come to the conclusion that some very important people no longer really believe in things like democracy, habeas, not torturing other humans, etc. If we’re going to be an empire, and at this point that’s what we are, then those things people like you care so much about are going to have to mostly be done away with in the interest of efficiency of running the empire. So it’s easy for me to see how someone like Graham comes to the conclusion that the GWOT is eternal, after all, potential enemies will be living in those external places forever so we’ll have to fight them forever. What’s more difficult for me to understand is why that mentality has become so ingrained in so many Americans that the people we send to DC from both parties eventually end up thinking like Graham.

                Maybe it’s exactly as you say, they all want to be ‘liked’. Who knows? I think it has as much to do with the way we have allowed corporations to consolidate economic power across most of the economy. People are so scared of economic disaster that they go along with most anything to keep their jobs. We’ve developed an ‘us vs. them’ mentality in which those who profit from the corporate structure will do anything to preserve their positions and they really have no interest in intellectual positions about torture, habeas, or anything else. Maybe we’re saying the same thing in somewhat different ways.

                For some reason I’ve always been interested in the Romans (no surprise I married an Italian I guess) going back to college when I took a three semester course on the subject. I’ve read most of those old paperback ‘classics’ and I don’t know how many other works. Lately, I’ve been reading Anthony Everett’s books on Cicero and Augustus. As long as we have this type of defense department supported by this type of corporate structure then I think we eventually lose our democracy in anything but name only just as the Romans did. John in Sacramento’s link to the Daily Kos diary laid it out pretty well. You can’t be an empire and a democracy. Simple as that. While it may be the case that Obama, Kagan and others like them are looking for ‘acceptance’ it may also be the case they actually know what they are doing and are doing it intentionally. It seems to me the Romans did it intentionally with the upper class going along to preserve some semblance of prestige/power and that’s exactly what is happening here. Remember, Augustus marketed himself at the time as a ‘reformer’ for the middle classes which was mostly his soldiers. When the Senate wouldn’t give him the reforms he wanted so he could give his soldiers some land he simply marched on Rome and took it.

                If everyone can see through Obama the question becomes what do we do in 2010, 2012 and beyond. Rahm thinks everyone is going to come around, the progresssives have nowhere else to go. That’s going to be a hard decision but if he turns out to be correct then you can forget about any progressive movement to bring some sense of fairness and normalcy back to DC. It will be all empire all the time and every man for himself.

                • john in sacramento says:


                  I wrote a blog using the link I gave, and used a quote from Cicero for the beginning

                  “Were we supposed to enjoy the highest position that the state is able to confer, and yet remain entirely oblivious of the national interests?… Curse it, do you have to be voluntary slaves?”

                  — Marcus Tullius Cicero to the aristocrats of the Roman Senate, when they obeyed the autocrat Marcus Antonius, “The First Philippic Against Marcus Antonius”, September 2cnd, 44 B.C.

                  I included a youtube that I think brought it to life a bit

                  • GulfCoastPirate says:

                    I remember that scene. That was an interesting series.

                    ‘Voluntary slaves’ – that appears to be where we are heading.

        • Mary says:

          And btw – no on this. It has never been the case that you could do what we are doing – not taking “combatants” who were taken in a battle or who were identifiable as part of the combat enemy; but rather engaging in home invasions, kidnaps, drug dealer round ups, etc. of people who do not meet any indicia of being a combatant under the laws of war and then a) making up a *material support* standard to replace the combatant standard; b) making up that terrorist gangs are an army with which we can be at a constitutionally and law of war supported war; c) not really knowing or defining which terrorist gangs with which we are in such a state; d) rounding up or kidnapping people who are not engaged in combat and don’t meet any law of wars definition of combatant and calling them “material support”ers of “terrorism” and saying that is grounds to hold them forever, bc by definition there can be no end to that “war” where they were providing “material support.”

          If you think such a thing has happened before in a legally accepted fashion – share with the class. ;)

          You – Cole – etc. – you’re just doing what Kagan did; buying into the framing that there is a “war” as the laws of wars have defined it historically. There’s not. Buying into the framing that “this” war is “like no other” It’s not. Seriously – go read Ex Parte Milligan – go read anything about WWII (or WWI, or Vietnam, etc.) that argument is made in every war and it’s always made as an excuse for atrocity or for attacking the rule of law – from napalm to usurpation of Habeas Corpus to claiming rights to try non-uniformed civilians by courts martial.

          We’ve been there, done that, before. Convert the losing sides’s arguments in Miligan to modern day English and you could be listening to Glen Beck, Rush Limbaugh, or Elena Kagan. They flat out make the arguments – that everywhere is the battlefield; that this was a war like no other; that a lot of “the enemy” were dressed just like civilians and they flouted the rules of law by not being uniformed and by plotting covertly and aiming at sabotage, that they were less than human beasts who were willing to murder their neighbors’ children – yada yada. It’s all been said before, but it was said to Justices who, unlike Kagan, didn’t just frickin nod and say, “that the problem”

          They kicked the framing in the teeth and gave a solution. Built the solution. Built the framework. Kagan hasn’t had to do anything remotely similar in any kind of setting. All of that would make me very distrustful of her abilities, but what seals the deal for me is that, taking a policy position is a choice and her choice, as Obama’s policy cartel, has been to cover up torture; to attack habeas; to support Presidential assassination. Those personal choices do seal the deal for me. (and btw, using an insurgency set of definitions might work, but then the war is “over” when the insurgents depose the current gov or it quells the insurgency – not when you reach the point where not one living person flies the Confederate flag anymore).

          • Petrocelli says:

            Brilliant. Brilliant. Brilliant.

            I was saving this for Sunday … Thank you, to the smartest, funniest group of Americans and our brilliant host, Marcy ! Your insights are making a difference in the World and at home. Onward & upward !

            • bmaz says:

              Okay, listen here now Petro the BBQ King. I said all of that previously in this thread. Just because Mary comes along, talks all purty like and makes me look like a blithering simpleton………

              • Petrocelli says:

                Yesterday, I was supporting the Murkan BBQ champs at a Rotary Ribfest … the guys from Kentucky & Kansas made incredible food and were the busiest.

                Mary got me with this – Convert the losing sides’s arguments in Miligan to modern day English and you could be listening to Glen Beck, Rush Limbaugh, or Elena Kagan. – and this – (and btw, using an insurgency set of definitions might work, but then the war is “over” when the insurgents depose the current gov or it quells the insurgency – not when you reach the point where not one living person flies the Confederate flag anymore)

                I would forward it to PBO, but apparently he does not read the stuff I send to him.

                All kidding aside, I should also single you out for praise … terrific contribution always. And for letting us go crazy when Mom’s away …

          • earlofhuntingdon says:

            (and btw, using an insurgency set of definitions might work, but then the war is “over” when the insurgents depose the current gov or it quells the insurgency – not when you reach the point where not one living person flies the Confederate flag anymore).

            Nicely said. Glenn Greenwald raised a similar point today in lambasting Charles Krauthammer’s war propaganda.

            To many who fly the Confederate flag, the war of northern aggression is ongoing; the civil rights laws of the 1960’s were another skirmish in it. If we had fought the Civil War with the framing of the war on terror, we really would still be at it. General Sherman’s great, great, great grandson would have just replaced the controversial commanding general of our occupying forces in Atlanta.

            The GWOT – which continues under another name, just as TIA does – is a war against existential opposition, not against defined individuals or groups. By design, such a war can have no end; someone will always pick up their flag and carry it. It’s a war that cannot be won, but can be waged in perpetuity, and can be waged with few of the legal and political limits society enacts to keep itself free. It’s a war that enables an elite to tell us we can’t retire until 70, because retiring in peace is too expensive.

    • bmaz says:

      Maybe I am misinterpreting these remarks, and you have to watch the video, but didn’t Kagan just say it is a bad thing that we are currently engaged in never-ending hostilities? Don’t we agree that is a bad thing? Isn’t Kagan right? What should she have said?

      Jeebus, you gotta be kidding. For you, Cole or anybody else that can’t find the answer that is right there in the post they are looking at, let’s be nice and simplistic so as to not create any confusion:

      Maybe I am misinterpreting these remarks

      Yes, indeed you are. Quite frankly, you don’t seem to even have a clue as to how much that is truly the case.

      and you have to watch the video

      And/or read the transcript; both are accurate evidence as to exactly what Kagan did, and far more importantly, did not say.

      but didn’t Kagan just say it is a bad thing that we are currently engaged in never-ending hostilities?

      No, she really did not; what Kagan did was agree with Graham’s false framing that we are in perpetual war.

      Don’t we agree that is a bad thing?

      I am not sure who “we” is/are, but while you and I may agree on that is certainly not clear as to Kagan; but to any extent Kagan agrees, she pretty obviously has no problem propagating the blatantly fraudulent meme and basing her legal reasoning on it, which is fairly despicable.

      Isn’t Kagan right?

      Again, no she is not; how many times and ways does that need to be repeated?

      What should she have said?

      See Marcy’s response for a perfectly acceptable answer. I would have said “Senator Graham, you are materially misrepresenting what the AUMF provides. First off, there is no formal declaration of war, there is only an AUMF sanctioning the exercise of what was once commonly referred to as a nation state’s police power, and setting clear restrictions on the exercise of that power. The restrictions state unequivocally that it is limited to only “nations, organizations, or persons” which “planned, authorized, committed, or aided” the Sept. 11 attacks.” And, further, there is nothing in the AUMF that purports to, or does, obviate detained individuals’ inherent rights to due process under both American and international law.

      • brantl says:

        there is only an AUMF sanctioning the exercise of what was once commonly referred to as a nation state’s police power, and setting clear restrictions on the exercise of that power

        Why tehn would it be a “nation state’s police power”, when it’s called the authorization of MILITARY FORCE, genius?

  5. JTMinIA says:

    ps. with that said, the “like all Jews I was in a Chinese restaurant” was brilliant; she’s a smart and amusing tool

  6. JThomason says:

    She bolstered the ambiguity in affirming her overarching agreement with Graham in a later exchange where she disavowed that supporting policy while in the employ of the WH amounted to a personal agenda. Perhaps she can later hedge on her vagueness as Graham hedges on a claim that he was being artful in “cross-examining” Kagan. All I heard were dog whistles hailing the two most recent Republican appointees in particular, to pay attention to the tone.

  7. Jeff Kaye says:

    In the video of the exchange, Kagan immediately turns to the Hamdi decision to buttress her answer to the prosecutorial Graham. She avers that Hamdi noted that there could be a new, different kind of war that might need certain “alternative procedures to put in place”, a question she said had not been decided by the Court. Graham ignores this point, and goes on to the habeas at Bagram issue.

    Here’s the relevant passage, FWIW, from the majority Hamdi decision itself. Emphasis is added. Note, I cannot find in the decision the suggestion by the Court that “alternative procedures” may be needed “because of the duration of this war it was necessary to ensure the enemy combatants continuing dangerousness” (Kagan’s words). That assertion is troubling, and is of a piece with Kagan’s acceptance of a “war with no definable end.” In other words, a full examination of Kagan’s response totally backs-up EW’s initial analysis.

    We take Hamdi’s objection to be not to the lack of certainty regarding the date on which the conflict will end, but to the substantial prospect of perpetual detention. We recognize that the national security underpinnings of the “war on terror,” although crucially important, are broad and malleable. As the Government concedes, “given its unconventional nature, the current conflict is unlikely to end with a formal cease-fire agreement.” Ibid. The prospect Hamdi raises is therefore not far-fetched. If the Government does not consider this unconventional war won for two generations, and if it maintains during that time that Hamdi might, if released, rejoin forces fighting against the United States, then the position it has taken throughout the litigation of this case suggests that Hamdi’s detention could last for the rest of his life.

    It is a clearly established principle of the law of war that detention may last no longer than active hostilities….

    Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress’ grant of authority for the use of “necessary and appropriate force” to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date….

    We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker….

    At the same time, the exigencies of the circumstances may demand that, aside from these core elements, enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict. Hearsay, for example, may need to be accepted as the most reliable available evidence from the Government in such a proceeding. Likewise, the Constitution would not be offended by a presumption in favor of the Government’s evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided. Thus, once the Government puts forth credible evidence that the habeas petitioner meets the enemy-combatant criteria, the onus could shift to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria.

    Perhaps it is this suggestion on how to tailor enemy combatant hearings to which Kagan is averring. But Kagan would then be taking the Court’s “the exigencies of the circumstances may demand” and making it into an endorsement of adaptation to never-ending conflict. But the justices foresaw something different, under such circumstance “longstanding law-of-war principles… may unravel.”

    • emptywheel says:

      To be fair, I think Court would be fine with Congress, MCA-like, changing habeas laws in the way Graham wants. As bad as this Congress is, I don’t think we’ll get there.

      But it would be nice if Kagan pointed out that by changing civilian law to create this other category of law for terrorists would change the basis for detaining everyone. And while no one wanting to get confirmed would say so, it’d also be nice if she pointed out that such detention would still violate international law.

      • Jeff Kaye says:

        Agreed, though not saying what one should say for political reasons is a sad state of affairs.

        Ditto, harpie, @26. Glad Murray noted this.

  8. pococurante says:

    Balloon Juice ceased to be interesting a few months ago. Dunno if John is just tired or what but the level of content has dwindled down to concern trolling. And cute animal pictures/stories. But mainly concern trolling.

  9. JThomason says:

    Silly me, I thought both Alito and Roberts were on the bench when they were nominated:

    GRAHAM: Well, Ms. Kagan, I’m shocked that you say that, because if I believe the way you do, that’s exactly what I would have wanted. If I really did believe that partial-birth abortion, as being proposed, was too restrictive — and I think you honestly believed that, that you wanted to have the broadest definition possible when it came to partial-birth abortion, to allow more cases rather than less — that I would have been motivated to get the language most favorable to me. And are you saying you weren’t motivated to do that?

    KAGAN: Senator, I was working for a president who had clear views on this subject.

    GRAHAM: But you were trying to take him to an area where he even felt a bit uncomfortable.

    GRAHAM: You were advocating, from what I can tell, a broader view of how partial-birth abortion would be interpreted, that when you met with the professional community, the doctors, they informed you early on in a private meeting, according to the record we have, that there’d be very few cases where an abortion would be allowed under the way this thing is written.

    And somebody with your background and your view of this issue, to me that seemed disturbing, and you were trying to change that and broaden it. Is that not true?

    KAGAN: With respect, Senator, it’s not true. I had no agenda with respect to this issue. I was trying…

    GRAHAM: Now, wait a minute. Wait a minute.

    I certainly have an agenda when it comes to an abortion. I respect the courts, but I’m trying to push the rights of the unborn in a respectful way. You can be pro-choice and be just as patriotic as I am. You can be just as religious as anybody I know.

    But that’s the point here. It is OK as an advocate to have an agenda. I think Alito and Roberts had an agenda. They were working for a conservative president who was pushing conservative policies.

    So it just is a bit disturbing that you, quite frankly, say you don’t have an agenda when you should have had. If I’m going to hire you to be my lawyer, I want you to have my agenda. I want it to be my agenda.

    KAGAN: I was trying to implement the agenda of the United States president whom I worked for….

    Emphasis added.

    Graham has transcripts of his questions up:


  10. earlofhuntingdon says:

    To bmaz @22,

    And, further, there is nothing in the AUMF that purports to or does obviate detained individuals inherent rights to due process under both American and international law.

    That’s the bit that seems to be disappeared by MSM commentators, Congress and the president. Whatever powers the president has must be employed within the law, not in disregard of it. People accused of crimes – and those we stop, detain and hold in brutal conditions because the government thinks they might have committed or might in future commit crimes – have rights is one of them.

    That a cooperative judiciary has found a majority of detentions at Gitmo to be baseless does not suggest the president is meeting that obligation. It does not support the argument that he should have more, less fettered rights to detain people on his own, unchallenged determination that he should.

    • skdadl says:

      Thank you, John. I don’t know whether Petro and Ishmael are still around — well, I’m pretty sure Petro has something on the barbie — but hi to them and to all other Canajun friends at EW’s, wherever you’re living now.

      This has been a very bad week for democracy and civil liberties in Canada. I wish I could say something more cheerful than that, but everyone I know online or in 3D is still hyper about watching the robocops charge and kettle groups of innocents who were singing the national anthem, something Canadians almost never do.

      Never mind. Teh queen has arrived. All will be well. (NB: I quite like teh queen.)

  11. TarheelDem says:

    Many of those currently being targeted, Bellinger said, “particularly in places outside Afghanistan,” had nothing to do with the 2001 attacks.

    As a criticism from Bushies, this is bizarre. The 19 folks who committed the terrorist attack on 9/11 died in that attack. Other al Quaeda operatives (such as Moussaui) were rolled up and prosecuted domestically shortly afterward. The evidence against those folks was presented in federal court, juries decided, and sentences were rendered. So under the strict 9/11 authorization, everyone else who actually are involved with al Quaeda are in material support of its activities.

    So under the AUMF, the US gets to define the battlefield and gets to say that anyone on that battlefield is a potential target for detention? That is very broad to say the least. And then endless war? For substantially fewer than 100,000 people?

    The Village is a loony bin.

    • emptywheel says:

      That’s not what I take Bellinger to be saying.

      He’s saying that there have been 2 rationalizations for the GWOT. Article II power under most of the Bush Admin (til about 2006, which is when Bellinger was at State), and then the AUMF.

      But once you rely on the AUMF, which is more appropriate in law (and is what Kagan is embracing), then you have to accept the limits built into the AUMF. That is, you can only use war powers with those who had something to do w/9/11. Bellinger is saying that a lot of what Obama is doing under AUMF authorization–like his JSOC teams in countries like Somalia–are not possibly justifiable bc there’s no tie bt the extremists we’re targeting in Somalia and 9/11.

      • Mary says:

        You’re right in what he’s attempting to say. I like his the way he says it – smarmy torture regime creep – that ” they are contracting the legal authority upon which those expanding actions are based” as if there was ever any actual “legal authority” outside of the AUMF for what he and he conspirators did. He sat there, memo in hand in August of 2002, knowing that they had a lot of people who were innocent and being tortured and treated with depravity to allow venting and experimentation, and Bellinger went with Addington telling him, *the President has decided they are illegal combatants and he isn’t revisiting it and we can do anything we want to, legally, with illegal combatants* as his lodestar.

        Then he went out for dinner.

        I’m glad you’re listening to his whine so I don’t have to.

  12. dustbunny44 says:

    Kagan knows as well as anyone that the confirmation process is not the time to challenge authority or stir the pot. Not now.

    Would you, in an interview for a job you wanted, challenge your hiring person or their organization?

    “That’s exactly the point, Senator” is the best answer most of the time.

    • bmaz says:

      Well you may think that is the “best answer”, but I think it is a crock and that the ethical duty to inform the people you will be working for – remember us, the American public?- and the duty to honor the advise and consent jurisdiction of the US Senate far outweighs Kagan’s petty and self serving belief that she should be anointed to the highest court in the land in spite of being terribly unqualified.

    • emptywheel says:

      Elsewhere, she relied heavily on the AUMF. No reason she couldn’t have done so here, even if only to caution Graham. “Well, the war on terror will go on forever, but the AUMF does have specific limitations in it.” Hell if you wanted to give Lindsey a hardon, you could even use it to justify having to do more legislation gutting habeas–that’s what will eventually happen anyway.

  13. behindthefall says:

    Of course it won’t end. It’s an empire. Except that we haven’t arrived at the Pax Americana phase quite yet …

  14. Mary says:

    @36 – no, it’s not. “That’s exactly the point” is decisional – you do not give a decisional answer and all these guys get prepped in murder boards not to give decisional answers.

    “I’m not sure if we know the answer to that yet”

    “I’m not sure I can speak to a legal definition of a matter that may come before the court”

    “I can understand your point of view, Senator”

    “Those are definitely the arguments that are being made, Linnie”

    etc – lot of vague responses to give IF she hadn’t wanted to go exactly where he was leading her.

    It’s mind-boggling, with all the things on the table that DOJ has been involved in over the last decade, that no one took her as aggressively as LG did on this topic, into the area of duties of DOJ lawyers to the Exec, the COngress and the Courts and into the area of, “If Obama does it, it’s not illegal” etc.

    Unfortunately, the only thing you can rely on the REpublicans to NOT do is to impeach Obama over assassinations.

    • bmaz says:

      Golly where are all those people that were sure Sheldon Whitehouse, Feingold and Leahy were going to stand up?

      • Mary says:

        Seriously – I’m fine, not impressed or bowled over, but fine, with Sotomayor, but with Kagan we’re getting less than we would have from McCain imo, and she’s very blatantly the ticket out of jail for torture murders, by action or absention or both.

        Just gives you the frickin creeps.

        • thatvisionthing says:

          Obama has such a funny taste for colorless dim suitpeople now — you wonder how he ever chose Jeremiah Wright’s church, ever chose Wright to marry him and Michelle, ever picked up on Wright’s phrase “the audacity of hope.” I can hardly believe candidate Obama and president Obama are the same guy.

  15. Mary says:

    OT – I just can’t help myself on this one – but on the Russian implants, why isn’t anyone getting Rivkin on to pontificate about the implants and the espionage act?

    After all, he was such a popular spouter offer about torture and he decorated himself during the AIPAC trial as one of “the experts” on the issue of what’s espionage


    He wasn’t shy on torture commissions and why we shouldn’t have one


    He’s sure a guy who understands worming into the good graces of policymakers. And espionage. And torture. And Russia. ;)

  16. bmaz says:

    Well I still cannot get past my little pet peeve of thinking that anybody who seeks a lifetime appointment to lord over the procedure and substance of every trial and appellate court in the country ought to have at least been in one at some point in their career. You would think that someone who had such grandiose visions of such a prominent place for herself in the legal profession would have had the intellectual curiosity of her profession to go do a pro bono case somewhere in her decades in the law or get involved somehow in some manner with the backbone of the American legal system, i.e. its courts, at least once or twice. But no, not Elena Kagan. She just didn’t give a fuck; kind of like Cheney and military service, she just had other priorities I guess. And now she feels entitled to rule over all of them.

    • BayStateLibrul says:

      Are you saying that Kagan jumped from the Cape Cod League to the Bigs, with

      the stops at A, AA, AAA?

      From Howard Wasserman on the trite metaphor

      1) Kagan said it was apt in saying that judges, like umpires, should not have a “team in the game,” should not come onto the field rooting for one team over another.

      OK answer, although she lost points for not using the Twins in her hypo in response to a question from a Senator from Minnesota.

      As I have argued before, to the extent this is what the metaphor means, it does no work. No one believes a judge should be “rooting” for one party over another and we don’t need an analogy to baseball to drive the point home. Besides, no one seriously believes an umpire “roots” for one team or that a judge “roots” for one party.

      But there’s more something going on here, tied to the complexity of law and the fact that different judges can reach different conclusions (which Kagan talks about later). An umpire may not be rooting for a particular team, but an umpire who interprets and enforces certain rules a certain way may benefit one team over another. An ump with a wider strike zone will make calls more to the benefit of a team with control pitchers who work the outside corner; an ump with a narrower zone benefits teams with patient hitters who work counts. Similarly, I would not say that Justice Scalia “roots” for the government in a challenge to abortion laws. But given that his reading of the relevant (far-less-determinate) rule is that Due Process does not provide a liberty to obtain an abortion, he is likely to find for the government in any challenge to a restriction on abortion. That does not mean Scalia is biased towards the government any more than it means Umpire X is biased towards the team with patient hitters. And it does not make their approach to law illegitimate. But the nature of the legal rules is such that one party always will benefit from that person’s legal views. This is why you cannot evaluate anything solely based on outcomes.

    • GulfCoastPirate says:

      Are you, Mary and EW (which is how I read you folks – sorry if I misunderstood) saying she is unqualified as in not having the proper credentials or unqualified as in just being a boot licker?

      If the complaint is that she is a bootlicker then isn’t that a function of our politics and even if it weren’t Kagen it would be another bootlicker type? Most Americans today are bootlickers. We send boatloads of bootlickers to Congress. The great hope of 2008 turned out to be a smooth talking bootlicker. Until the American people change and bring about an end to wars in places like Iraq and Afghanistan themselves won’t we continue getting bootlicker types, some more smooth talking than others?

      • bmaz says:

        Far more than bootlicker status. Modern courts and court systems are complex things. The Supreme Court constantly determines cases and controversies which set or modify fundamental procedure and practice in the vast array of trial and appellate courts in the nation, not to mention incredibly complex evidentiary issues. How does a justice understand the import and nuance of an evidentiary issue if they have literally never been confronted with one before? There have been SCOTUS justices before that were not previously judges. There have been justices before that had little experience as an attorney advocate in trial or appellate courts, but gained experience as either trial or appellate judges at a lower level before ascending to the Supreme Court.

        But there has NEVER, ever, been a nominee that had neither category of seasoning and experience. Never, that is until Elena Kagan. She does not know her ass from a hole in the ground about the day to day American court system she seeks to lord over and, even more troubling, never even had the intellectual and professional curiosity before to participate in any regard.

        • BayStateLibrul says:

          Beejebus, are you going to have a 4th of July firework meltdown if Kagan

          is confirmed.

          Justice Thomas is the worst, not Kagan.

          • bmaz says:

            I am not saying Kagan will be the worst justice ever, I am saying her record is that of patently the least qualified nominee ever. Harriet Miers is Ted Olson compared to Kagan. If a Republican President put up a nominee with this thin and nonexistent record, Democrats would be howling (indeed just as they did with Miers, who had a far more complete career record and was no more of a toady than Kagan).

        • BayStateLibrul says:

          Shit, the Supreme Court is a political animal, just look to Gore v Bush,

          We are bootlickers in a sense….

        • GulfCoastPirate says:

          Interesting analysis of the lady.

          Seems as though you are acquiring a few detractors though. :)

          • bmaz says:

            Yeah, well, I am used to that, it will not be the first time. But I call em as I honestly see em; I was as tough and critical as anybody on the failings of Bush/Cheney/the Republicans and their policies and nominees. It would not be intellectually honest to not be as critical and honest when the failings are those of Democrats and a Democratic President and Administration. I care deeply about the issues I comment on; I am not here to be a cheerleader. If that upsets some delicate sensibilities out there in the ether, oh well we will all just have to press on as best we can.

            Especially after seeing her for a bit at her confirmation hearings, it is hard to not like Kagan personally; she is indeed sharp, human, engaging and seems to have a deviously fun sense of humor. That says a lot to me. But not enough to overcome the holes in her record. If she had been appointed to a District or Circuit court I would have much less of an issue; they have a training wheel system for new judges that is very, very good. And even with as little as a couple of good years of that kind of in the trenches experience, I would then likely not have the strong concerns I have expressed. But that is not the case, and I do have said concerns. Strongly.

            • GulfCoastPirate says:


              Same question as to Mary – why did Obama pick her and do the D’s have anyone better ready to go?

              When Obama cam out and picked Rahm as COS was there any question in your mind at that time we had been bamboozled?

              • bmaz says:

                Why I think Obama picked her would be a long answer and I have a fairly sizable motion response I have to get filed on the east coast, so I have a time issue. But there were fantastic candidates ready to roll. Diane Wood while not a hard left progressive was actually an incredibly well rounded and suited candidate for the Supreme Court. Pam Karlan is outstanding. My pick would have been Erwin Chemerinsky. The talent is there, Obama ignored it.

                Yes Rahm was a telltale sign; for me however, I pretty much had a bead when he made the morally duplicitous about face on FISA even before he was elected.

                • john in sacramento says:

                  Yes Rahm was a telltale sign; for me however, I pretty much had a bead when he made the morally duplicitous about face on FISA even before he was elected.

                  The worst part about that – well, not the worst, the worst was his voting for it – but, what really pissed me off was his smug, condescending, patronizing, assholeieness (assholeyness?) of an explanation for it

  17. WilliamOckham says:

    Completely OT: the ad at the top of the page right now is for Barry Eisler’s new novel, Inside Out. In it, the character named Daniel Larison’s ex-wife is named Marcy Wheeler.
    Eisler’s gimmick is that he names his characters after bloggers.

  18. prostratedragon says:

    OT: Maybe the Crusades weren’t forever, but the Macondo eruption might be.

    Courtesy Alexander Higgins, once again Mr. Tony Hayward has heard from the Congress of the United States, specifically Rep. Edward J. Markey (pdf of letter here):

    Dear Mr. Hayward:

    I write to request information related to the integrity of the wellbore and casing at the Deepwater Horizon leak site, as well as to request further information on the design, testing, timeframe and likelihood of success for the relief wells being drilled today. While BP has repeatedly stated that the relief well would be completed by mid-August , I am concerned that possible damage to the wellbore and casing and the difficulty of the operation itself could result in more weeks or months before the flow of oil and gas is finally stopped.

    As you know, there has been speculation that the wellbore and casing at the Deepwater Horizon leak site may have been damaged and that leaks of oil and gas may already be coming through the sea floor or through the pipe itself. The risks of this occurring were increased by BP’s decision to use a more risky drill pipe casing design, and because the riser pipe was both inadequately centered in the well-bore and inadequately cemented. Damage to these already vulnerable systems could have occurred through a number of events: via the initial explosions that sunk the rig, through erosion from the high pressures and volumes of oil and gas associated with the leak and possible washout from the formation, or due to the failed “Top Kill” efforts which blasted 30,000 barrels of drilling mud under high pressure into the well. …

    In addition to concerns related to the condition of the wellbore, I am also concerned that the relief well design, testing and likelihood of success may prove the August timeframe to be optimistic. At the June 15, 2010 hearing of the Energy and Environment Subcommittee, BP’s Lamar McKay stated in response to questions that “the design of the relief well is very, very similar to the original well.” In light of the well-documented and extensive problems associated with the original well’s design, this statement is worrisome to contemplate. Moreover, it can take more than one attempt to plug a well using a relief well. For example, it took nearly 10 months to permanently halt the Ixtoc oil spill.

    “Worrisome.” I salute Rep. Markey for that fine example of prostration. Ixtoc is the 1979 spill whose volume Macondo might have blown past yesterday after only 72 or so days.

    Anyway, in view of the foregoing Rep. Markey has a long list of very important questions for Mr. Hayward’s prompt report. It is to be hoped that the latter takes this letter much more seriously than he took the one Rep. Waxman sent him a couple of weeks ago. In any case, it’s good to see some in Congress continuing to take seriously the possibility that this disaster could be made even worse.

    • bmaz says:

      Jeebus, that is almost word for word what crazy old idiot bmaz has been arguing for over a month now (see here and here). Go figure.

      Macondo is the mouth of hell. There is no happy ending.

      • harpie says:


        A small note on the bottom of his slide reads ‘marine environment creates integrity challenges’ – engineering-speak for ‘accidents likely’.

        …kind of like “enhanced interrogation techniques”…

        and “Plan B”…”extreme genetic engineering”…

        These people actually seem to believe they are Masters of the Universe.

        • Gitcheegumee says:

          Some additional info about Under Secretary for Science, Dep’t. of Energy -Dr. Steven Koonin:

          Department of Energy – DOE Announces More Key Administration PostsMar 20, 2009 … Dr. Steven E. Koonin is currently Chief Scientist for BP, plc, … Koonin joined BP in 2004 following a 29-year career at the California …
          http://www.energy.gov/news2009/7080.htm – Cached – Similar

        • bobschacht says:

          These people actually seem to believe they are Masters of the Universe.

          No, silly, the MOTU are not actually masters of the *Universe*. They are masters of the rest of us in responding to the universe. They control *us*, not the universe.

          There now, don’t you feel better? /s

          Bob in AZ

    • GulfCoastPirate says:

      I’ve been around hurricanes and the sea all my life and what we saw with Alex was very troubling. That thing was large enough to affect the entire gulf and yet was mostly a tropical storm until it was close to land. We’re still getting large amounts of rain here along Galveston Bay two days later and it’s expected to continue through the weekend. I hate to see what a full fledged storm coming across the Atlantic or from the Caribbean is going to be like with water temperatures the way they are now.

        • GulfCoastPirate says:

          Invest 95 this morning. Jeff Masters had an interesting statement about BP in his blog on Weather Underground this morning. Seems BP and the Coast Gaurd are planning on a 5 day warning to shut down/evacuate the area; however, only about 30% of the time was the forecasting accurate enough to do that in the past. Some of that is from the uncertainty involved in the science and some of it is the formation of the storms themselves. Take a look at where the new invest is located right off the Florida panhandle. If that things spins up they’ll be lucky to get 5 hours.

    • fatster says:

      That photo of the oil- and Corexit-polluted wave is a mighty symbol, harpie, rivaling only the one of the oil- and Corexit-soaked pelican standing in the shallow water and trying in vain to lift its wings. Even the Phoenix couldn’t rise covered with all that poison.

  19. bobschacht says:

    I’m late in coming to this diary of yours, and I have yet to read through the comments, but I want to thank you for your very penetrating analysis. I hope your diary will be widely read.

    Bob in AZ