Elena Kagan and Lindsey Graham on the Global Battlefield, the Sequel
This exchange is one of the most telling from the entire Kagan hearing today (note; we’ve edited this exchange for length; here’s the full exchange; also, while you’re watching, keep an eye on the body language of the bearded man sitting behind Kagan, White House Counsel Bob Bauer).
It’s striking, first of all, because Lindsey Graham plays the role of the cross-examiner and his delivery largely overwhelms Kagan. As they go on, Kagan manages to reclaim her ground–on the issue of whether or not the entire world is the battlefield of the war on terror. But even there, the difference in her various answers suggests troubling things about her stance on habeas.
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.
Perhaps sensing the danger, Kagan notes that the Hamdi decision envisions such an indefinite war might require a different approach to detention, perhaps a review to ensure a detainee’s continuing dangerousness. This thrusts Kagan not into the realm of legal review, but the policy disputes between the White House and Lindsey (again, the watchful eye of Bob Bauer here is worth noting).
Our excerpt jumps here (after Lindsey makes his pitch for just such a program).
Lindsey comes back by getting Kagan to personally endorse the stance she embraced in her Solicitor General role, arguing against habeas rights for Bagram detainees.
Lindsey: You argued against expanding habeas rights to Bagram detainees held in Afghanistan, is that correct?
Kagan: I did, Senator Graham.
Lindsey: As a matter of fact, you won.
Kagan: [pushing back with apparent discomfort] Uh, in the DC Circuit–
Lindsey: [interrupting] And you probably won’t be able to hear that case if it comes to the Supreme Court, will you?
Kagan: Well, that’s correct, and the reason–
Lindsey: [interrupting again] Well, that’s good cause then we can talk openly about it.
Kagan: [laughing] Uh, if I could just say, the Solicitor General only signs her name to briefs in the Supreme Court, authorizes appeal, but does not sign Appellate briefs, but I determined that I should be the Counsel of Record on that brief because I felt that the United States’ interests were so strong in that case based on what the Department of Defense told our office.
Lindsey: Right. I want every conservative legal scholar and commentator to know that you did an excellent job in my view of representing the United States in that case.
Lindsey then gets her to reiterate that she signed that brief because of the seriousness of the issues for the government. He interrupts again:
Lindsey: Well, let me read a quote: “The Federal Courts should not become the vehicle by which the Executive is forced to choose between two intolerable options: submitting to intrusive and harmful discovery, or releasing a dangerous detainee.” Do you stand by that statement?
Kagan: Senator Graham, can I ask whether that statement comes from that brief?
Lindsey: Yes it does.
Kagan: No, I uh, that statement is my best understanding of the very significant interests of the United States government in that case, which we tried forcefully to present to the Court and as you said before, the DC Circuit–a very mixed panel of the DC Circuit–upheld our argument.
Lindsey: Right. You also said “The Courts of the United States have never entertained habeas lawsuits filed by enemy forces detained in war zones. If Courts are ever to take that radical step, they should do so only with explicit blessing by statute.” You stand by that?
Kagan: Anything that is in that brief I stand by as the appropriate position of the United States government.
Lindsey: [while she is speaking] Fair enough.
Throughout this exchange, Lindsey basically had Kagan cornered, not wanting to disavow a document she had signed in unusual circumstances, but seemingly recognizing the risk of adopting these harsh statements as her own. Perhaps because she is on her heels, she doesn’t question more of Lindsey’s own assumptions (such as that the issue was “expanding” habeas to Bagram detainees rather than determining the bounds of habeas explicitly left open in Boumediene). Not that it matters, given how extreme the sentences from the brief are.
In the bit we’ve cut, Lindsey goes on to say that conservatives are going to be happy and liberals are going to be unhappy with those statements. He’s right.
Later in the exchange, Lindsey tries to do the same with Kagan’s statement–to Lindsey–in her Solicitor General hearings regarding the entire world as a battlefield.
Lindsey: The battlefield, you told me during our previous discussions, that the battlefield in this war is the entire world. That is someone were caught in the Philippines, who was a financier of al Qaeda, and they were captured in the Philippines, they would be subject to enemy combatant determination. Um, because the whole world’s the battlefield. Do you still agree with that?
Kagan: Well Senator I was speaking there as a legal policy matter representing the position of the Obama Administration. That’s obviously a very different role–as the advocate role that I played is also a different role–
Lindsey: Let’s just stop there. When you were an advocate, you had no problem advocating that position.
Kagan: Um, there’s certain parts of that I think that we have not addressed in the United States government. So the United States government has argued that the battlefield extends beyond Iraq and Afghanistan–
Lindsey: Attorney General Holder said that the battlefield is the hearts, the minds, and wherever al Qaeda may reside. Do you believe that is a consistent statement with Obama policy?
Kagan: Senator, when I was here before you asked if I agree with the Attorney General and I said that it would be bad to disagree with the Attorney General, given my position, and I’m still the Solicitor General and I still agree with the Attorney General.
Unlike the sentences Lindsey culled from the Bagram brief, Kagan clearly tries to distance herself from the battlefield statement, effectively claiming these statements were uttered in her role as an advocate for the government’s policies (though of course, they were made in her confirmation hearings–she wasn’t yet Solicitor General). But that then raises the question of why she was so quick to distance herself from the battlefield comment, but not the equally extreme statements on habeas (which, in any case, contradict the battlefield statements; since SCOTUS has already said Gitmo detainees have habeas rights, then detainees on the battlefield–that is, somewhere in the world–do have habeas rights). Does Kagan believe more strongly in her Bagram habeas stance than in her platitudes about the world as a battlefield?
Later in the hearing (at about 5:50), in one of those set exchanges majority parties use to smooth out nominees’ rough edges, Durbin prompts Kagan to say with regard to indefinite detention (this is a near quote) the positions she took as Solicitor General are not necessarily the positions she’ll take as a Justice. The positions she has taken are for the US Government as an advocate. Coming from a friendly questioner, Kagan manages to reassert the abstract reason she tried to give under Lindsey’s fire for why her thoughts might change as she ascends to the Supreme Court.
But that doesn’t, IMO, explain the difference in her approach to answering Lindsey’s question, for why she endorsed the sentences from the Bagram brief but caveated the statements about the world as a battlefield.
Now, don’t get me wrong. I absolutely think that Lindsey is being a horse’s ass here, interrupting Kagan at every turn, and cornering her with her own language. But he’s a very effective horse’s ass in–at the least–getting her to endorse these views on the record such that any backtracking off them as a Justice could be pitched, with some truth and some spin, as a flip-flop. I’m actually more hopeful that Kagan disagrees with the Obama Administration on some of these issues than I was before. But if we’re supposed to be thrilled about Kagan because she’ll persuade Kennedy or even the more conservative Justices to her views … I just don’t see that.
Lindsay Graham loves his wars so much he never wants them to end. Plus he loves battlefields so he wants battlefields to be everywhere. In fact a person can be part of a battlefield if they are terrorists.There is even a battlefield in the hearts and minds of those Muslims under US military occupation. We will have to do things to win that battlefield, except for giving them their countries back to them.
This is similar to Kagan’s testimony for Solicitor General. Lindsay also tells us the wars and the repression will never end. Kagan agreed.
but seemingly recognizing the risk of adopting these harsh statements as her own
The problem is that there is no risk and she knows it. She’s spouting Jack Goldsmithian mantras with more confidence than she’s recognizing her supposed own work product – having to confirm with Graham that a statement is from her brief before agreeing with it bc she has no independence of thought and reason to say whether or not she does agree with it without that savings.
You have to give it to Graham, though – as with Alito (who he also pinned down on this *don’t give a terrorist the right to sue us* crapola) he’s getting way more out of his questioning than anyone else does.
Kagan and Obama make me outright hate the Democratic party. I try to take a deep breath and look at the solicitations I get from Leahy and Feingold objectively and remember when I used to have respect for them, but the thing Obama had done that Bush couldn’t is to make me lose respect for not just most Dems in Congress, but pretty much ALL of them. They don’t even speak up.
I just looked at the tape with no sound (mr. posaune’s on a deadline and I trashed my headphones).
But, the interesting thing is Kagen’s body language — she doesn’t look like a confident jurist, or scholar or just plain lawyer. She moves like a politician trying to find the safe place. Squirm. Worried look, “did I just say what he wanted to hear?”
Trash all the fucking Dems. I want the whole lot to go down. There’s not a spine among them.
What was that Churchill said about going down? Nations which go down fighting rise again, those who surrender tamely are finished. The Dems are FINISHED. Assholes all of them.
OT: Barack made a surprise visit to the CIA hq today. Only know because I got stuck behind the 20-cop car, 12 black SUV motorcade. Funny, it’s just past the sign for Fort Marcy.
EW,
Thanks for parsing this out for all of us. I am embarrassed for our Democracy that this is the best we can offer up for a Supreme Court Justice. It is not just the Gulf of Mexico that is polluted with contaminants; So also is our political process, and both political parties– and our Democracy itself.
The Democrats have earned their reputation for being “weak.” They just don’t have the gumption to stand up and be counted when the chips are down and our Constitution needs to be defended. What a pathetic lot.
Bob in AZ
Temporarily in TN
No reason to be embarrassed for our Democracy that this is the best we can offer up.
Our Democracy didn’t make this pick, only 1 person made this pick.
“Anything that is in that brief I stand by as the appropriate position of the United States government.”
Wow, I’m not a Kagan fan but it strikes me that there is great difference between calling something “appropriate” and calling it legal.
Uh, I don’t really want anyone who would make a distinction between “appropriate” and “legal” to serve as SCOTUS Justice.
That’s not a distinction Ms. Kagan will often be called on responsibly to make as one of America’s top nine judges.
Unlike jobs in the White House or on the Hill, or advocating with those who are from a perch at a top law school or “think” tank, Ms. Kagan will not be making legal policy: she will be deciding the fates of real people, often the powerless in conflict with the powerful.
Those decisions may yield policy, but their first and primary effect is on the litigants and those very much like them. As Sam Weinberg said to JoAnne Galloway: “It’s the difference between paper law and trial law!”
Ahh, we live with more than a few institutions, practices, beliefs, etc. that are legal under the law and morally inappropriate.
Ex: America’s massive ‘defense’ budgets are both legal (they fall within the limits of the law) and inappropriate (they are unnecessary and provide the means for the country to pursue immoral ends).
Goes to show what having spent time in a real court room can do for even average advocate Lindsey Graham’s skills. Ms. Kagan, unlike Mr. Graham, has spent about as much time in court as an aggrieved spouse in a contentious divorce case.
That won’t help her win arguments with those who disagree with her – does she disagree with anyone? – or make her a suitably informed leader of the American judiciary – a role that will be as new to her as being president has been for Obama, but one she may keep for possibly ten times as long.
It would be interesting to do a post and line up all Graham’s questions and examine the self-interests and self-protection motivations behind his questions.
Great post EW. Thanks.
EoH, great comments.
i have no idea what she believes from her history or what she says in the hearings.
the best I get from her history is how she grew up and what her family stood for.
she campaigned for the Supreme Court her whole life and that game continues
So I dont get exorcised about what she says here. the game here is confirmation.
it doesnt matter what she says.
Roberts lied his way through the hearings. The balls-and-strikes metaphor was a robe he put on to weasel his way through his hearing. He has violated that from the day he walked up the steps.
She’s a pretty weak candidate. This was taken as read, as soon as Obama put her forward.
I don’t mean to be difficult. Why does this post refer to Senator Graham by his first name? About halfway through reading, I went back to the beginning to see if I’d made a mistake and was reading about someone else.
Well now, the so called brilliant, warm, personable center-left Ms. Kagan reveals an ugly, conservative, elitist view of the world in which she wishes to adjudicate. She will be the 6th vote for the conservatives far more than the 5th for progressives on split decisions it appears. Great choice Mr. O. Just what we need. To bestow even more power on the military-corporate establishment so it can wreak greater havoc in the world.
Replace “Kagan” with “Alito” or “Thomas” and CAP, Kos and many others would be calling for the dismissal of the candidate. Instead they are engaged in full court defense of her. It’s all about that “D”. Never doubt it.
So, does any of this survive if we declare “there is no war on terror”? Declare al Qaeda or X to be international criminals to be pursued under criminal law and stop using the war metaphors. All the “war law” stuff become irrelevant, doesn’t it?
WORD! Well done, Scarecrow, that’s what we need. Since the neo-feudal world being materialized by our dear MOTU is a creation of their atavistic ideologies, just so, by the power you just demonstrated, we can define their world of pain right out from around us.
Myth-making materializes the intentions of the maker. To change the world, we need to change the metaphors in which our dreams become our visions become our narratives become our realities. Problems of mythic proportions demand commensurate responses, right? Since it’s the power of perverted narratives that has gotten us into this Waste Land, simply by recognizing and reclaiming that power, we can get the hell out of here.
We don’t have to believe in life as a perpetual holy war of us good guys over here against them bad guys over there.
For example, how do we stop the juggernaut of the war on terror from crushing us all? (Hint: all Zen questions should be suspected of being trick questions).
You don’t stop juggernauts by opposing them with equal or greater kinetic activity. That’s exactly what agents provocateur want. You don’t jump juggernauts, you simply sidestep them, as Scarecrow rhetorically did.
I bow in your virtual direction (Coriolis correction requested).
That’s one of the reasons Kagan should have called Lindsey on his use of “hostilities.” Becuse if it’s just hostilities and not war, then the legal basis for indefinite detention collapses, as it should.
Good point, ew. Methinks this is why we say, the pen (now, the keyboard) is mightier than the sword.
Great point that is absolutely right. I also agree with Knowbuddhau’s comment @ 30, in which he said,
I also believe our government needs to grow up, metaphorically speaking, and publicly take responsibility for its role in causing terrorism, just as the British government did for the Bloody Sunday massacre in Ireland. Our government has inflicted incalculable harm around the world pursuing an aggressive foreign policy that includes assassinating public figures in foreign countries who disagree with or resist U.S. influence and control, invading foreign countries with the military to secure corporate access to exploit natural resources, instituting regime change to install antidemocratic despots who govern as U.S. puppets, and killing all who resist our aggression as well as many innocent civilians.
American exceptionalism is just an excuse for exceptional arrogance and adolescent bully behavior. We sow what we reap and we are sowing our own destruction with our global war on terror.
Very well said, Mason, IBIYVD, too.
“We’re special” is no way for the self-sovereign citizens of a mature democratic republic to be in the world. Compare “God Bless America,” “There Can Be Only One,” “The Power of Pride,” “The War on Terror,” and every other jingoistic nation-jacking metaphor, with Tiny Tim’s prayer: “God bless us, every one.”
We are under the influence of two versions of the same myth of the cosmos: either as god’s own, or as no one’s own, perpetual motion justice-dispensing bogus holy war cash machine. And of course, our mythos, our science, economy, and especially military, are taken as the supreme manifestations of our mastery of the Great Cosmic Machine.
At root, the problem is epistemological. Are we mechanisms, or are we organisms? Are we self-sovereign, or is our behavior ever and always to be determined by outside forces applying ever greater leverage? Do we choose our life’s path, or are we just following orders from the Biggest Man Up the Highest Stairs, whether that be Newton, Cheney, Blankfein, or a mythical bearded white man in sandals, a robe, and sitting on a throne? Are we self-sovereign beings, fully aware of our own role in our own becoming, or lifeless puppets responding reflexively to the dictates of the laws of man-made science?
The effect of adopting the Newtonian model of the cosmos, based on absolutely and eternally separated bits in an absolute vacuum, as the model of the human psyche, is to implode our psyches into quantum singularities of egocentric pain, effectively, essentially, experientially, and existentially cellf-imprisoning us human selves in cellves of our own mistaken mistaking.
That’s right, astute readers: the Newtonian reduction, of us organisms to mere mechanisms, makes cosmic pinheads of us all.
The name of the contemporary Scottish sculptor escapes me right now, but he does these unbelievably beautiful installations in situ, based mainly on the basic shape of the cairn.
Anyway, what he says is, “the seed of the shape of the things we make is in the stones we stack to make them.”
Look at our highways. Cities are planned with the car as the fundamental unit, not the pedestrian, much less the self-sovereign citizen. The fundamental unit of our political economy is some sort of Newtonian voodoo doll, oh so easily jacked.
See? Misconceived psyches, black holes of egocentric pain, are the fundamental units of this world of pain we’re in. There’s no appreciation of the opponent force of kinetic actions.
What’s the opponent force to kinesis? Kenosis, self-emptying, the power of Leaves of Grass bursting through asphalt and iBOPs (information, that is) the world over. Our lungs, hearts, and even our minds, function on the principle of the self-filling/self-emptying vessel.
It’s the power by which these very words, these self-emptying vessels of mind, don’t need to be forced to give up their contents. These words self-empty upon reading. The fundamental unit of awareness is the self-filling/self-emptying neuronal model of stimuli, into which, like these words right here or cups of tea, experience is flowing; from which our shared awareness of our shared creation of this shared narrative is arising; and out of which, our behaviors are flowing like water.
It’s often said, that the knowledge of our own impending deaths separates us from the rest of the earthlings. There’s another one: we are aware of our own role in our own becoming. IOW, we can make shit happen from within. We don’t have to believe the hype, that our behavior is ever and always to be determined by following the orders of people who claim to be following the orders of the Biggest Man Up the Highest Stairs.
Sculptor=Andy Goldsworthy?
http://en.wikipedia.org/wiki/Andy_Goldsworthy
WOOHOO! Thanks so much, that’s been bugging me for months now. Aren’t his works absolutely stunning in their simplicity?
D’oh, I suck, I always thought AG was Scottish, but his bio describes him with the more generic ‘British.’
I’m so glad I could help…it’s the least I could do in exchange for your sharing of your thoughts and knowledge. :-) And, yes, I was quite intrigued both by his work and his thoughts about it…and I thank you for bringing him to my attention!
Namaste.
I bow in your virtual direction.
Kagan is a closeted republican just like the fraud Obama.
Indeed.
After watching two days of hearings, and after having read and heard of all the ‘converstations’ as it pertains to her qualifications to SCOTUS, I am asking myself this question relative to Kagan:
“What are Hispanics getting for their money?”
And in answering this question for myself, I am attempting to utilize the following “dialectal”. To wit:
In the traditional vein,
1. Is she a ‘conservative’?
2. Is she a ‘centrist’?
3. Or Is she a ‘liberal’?
On the traditional, I come down on the side that she is a ‘centrist’.
Now, from the Hispanic “dialectal”, I observe the following:
1. Is she a ‘conservative’ in vein of a Neo-Conservative?
2. Is she a “regressive” Moderate in the vein of a Neo-Liberal?
3. Is she an “aggressive” Moderate in the vein of the Center-Left?
Now, my opinion is irrelevant to her confirmation, and yet, Hispanics know that she will serve on the Court for at least 30 years, and in this length of time, America will move from being majority white society to a majority non-white society. Thusly, understanding that she is a “neo-lib” is going to be the predicate for any lack of social progress and all because the Neo-Liberals are predisposed to caving into the Right, on all issues of importance, and done in order to demonstrate that the “damage done by Democrats to Democrats” won’t be so well illuminated among the middle class and the economically disadvantaged. As such, the Neo-libs will continue to attack the Neo-cons in order the maintain the key to the door where the light switch is located. And darkness rules.
Therefore, I have arrived at the judgment that Hispanics are going to be highly disdtrustful of what Kagan says or does in the next 30 years as a member of the Court.
Jaango
Kagan’s problem: She must defend an indefensible and incoherent policy.
But no. One of her stature and means has an option not easily available to the vast majority of us in the trenches: she can always resign.
It is not a moral imperative to be incumbent, nominated, appointed, or indeed serving evil as a matter of course. Powell, for example, should be ostracized on that recognition alone. But such understanding of civic duty is no longer en vogue – above all, we must serve when called upon.
I agree.
If she wants to be supreme and exulted she must forget about the law and bow to the ruling class. The law is only for the lessor people. Habeas Shmabeas.
“I’m actually more hopeful that Kagan disagrees with the Obama Administration on some of these issues than I was before.”
How small our world has become… it is all hope, all the time.
If Graham can effectively run circles around her on a completely predictable issue, one that not only exposes her as the client-serving legal automaton she is, but that is also the load-bearing pillar of the Graham-Lieberman-Obama axis of legislation programs related evil, intent on properly codifying the Bush ad-hoc introduction of the perpetual and unconstitutional National Security State, then I expect her tenure on the SCOTUS will rival Thomas in brilliance, minus the inflated mystique.
If the emperor is naked, I’d rather not hope that he is at least easy on the eye.
New post up top…
that’s why one votes Democratic – to consolidate and codify the police-state impulses the Republicans sometimes put in place first.
it has long been known as the ratchet effect.
Clinton ramped up the ‘drug war’ laws and passed things like CALEA and so then in 2008 folks who vote for another “man from Hope” do so because they support more of the same. thanks Democrats!
All hope is gone!
.
We can hope that she is saying all these repugnant things (in support of eternal war) just to make the process pleasant. However, I’ve spent all my hope on Obama and have shot craps. I’m out of hope and have become jaded and distrustful of Obama.
I believe that it is worse to swindle the American public than to be honest and be an up-front Republican. At least then, I still would have hope. .
As I began, I end. All hope is exhausted. I’m running on fumes. Help! Someone give me hope. Type quick. Consumer confidence is following my lead.
That is why the right hates to this day Justice Marshall. He was a man who could not be buffaloed. She doesn’t deserve to be on the court. She is not a conscious builder/battler; she is a compromiser/appeaser.
Totally worthless.
Agreed. The Democravens are like the Indiana Pacers of the NBA: the Pacers never lose enough games to win the draft lottery and a top draft pick, but refuse to clean house in order to do so, and so they continue to limp along in a perpetual state of mediocrity. The dems will just keep the country limping along, a mediocre, Third World country living off of past glories and the hope that one day someone or something will happen to rescue us. They won’t run us into the ground like the repugnants, but they won’t make a bold change that will solve our underlying problems. I think it is time for me to move elsewhere.
What I don’t understand is why leftist commentators like Thom Hartman and the like continue to tow the line. They continue to say how wonderful Obama is and how we need to give him more time and the like. Time is up, judgement will be passed and he will be a one term president. True, perhaps the Republicans will “do worse”, but I’m tired of the lesser of two evils argument and frankly it does little to make me proud of my government on its actions.
Perhaps things will be much worse before they get better. Perhaps we won’t have a glimmer of hope until 2016 at the earliest, but I am tired of the current batch of Democrats. They need to “go away”. They have betrayed the trust of the American people and failed to represent the people, but instead chose the party first.
I’ll sit at home before voting for another Democrat. New Democrats need to fail miserably.
Shorter Kagan:
“It’s a world full of love. Love is a battlefield(tm).”
EW, I don’t think that you should give up you day job for mindreading; you don’t seem to be very good at it.