Kagan’s 2005 letter

KAGAN’S 2005 LETTER…. The most substantive area of criticism when it comes to Elena Kagan’s record tends to focus on the power of the executive, specifically in areas of national security. But Steve M. flags this NPR report on a letter Kagan signed five years ago, which offers at least some encouragement on this front.

In a 2005 letter to Sen. Patrick Leahy (D-VT), Kagan and three other deans of major American law schools wrote to oppose legislation proposed by Sen. Lindsey Graham (R-SC) to strip the courts of the power to review the detention practices, treatment and adjudications of guilt and punishment for detainees at Guantanamo Bay, Cuba.

“To put this most pointedly,” the letter said, “were the Graham amendment to become law, a person suspected of being a member of al-Qaeda could be arrested, transferred to Guantanamo, detained indefinitely … subjected to inhumane treatment, tried before a military commission and sentenced to death without any express authorization from Congress and without review by any independent federal court. The American form of government was established precisely to prevent this kind of unreviewable exercise of power over the lives of individuals.”

“When dictatorships have passed” similar laws, said the deans, “our government has rightly challenged such acts as fundamentally lawless. The same standard should apply to our own government.”

Many on the right, who’d assumed Kagan would be their ally on executive power, aren’t happy about this. A good sign, to be sure.

I don’t imagine one letter, five years ago, will necessarily erase concerns on the left, but it’s nevertheless a heartening contribution to the record.