The Bush administration’s policies on terrorist detentions were contentious, but Supreme Court nominee Elena Kagan likened them to those of a banana republic.
In a 2005 letter, Kagan compared legislation limiting the Supreme Court’s review of terrorist detentions at Guantanamo Bay to “when dictatorships have passed laws stripping their courts of power to review executive detention or punishment of prisoners,” saying it was “fundamentally lawless.”
Kagan’s inflammatory language could provoke the ire of Republican critics, but it is already calming the nerves of liberals concerned she is too centrist.
The legislation in question, an amendment introduced by Sen. Lindsey Graham, South Carolina Republican, would have prohibited the Supreme Court from deciding whether “enemy combatants” at Guantanamo Bay were to be granted habeas corpus. Instead, it granted the U.S. Court of Appeals for the District of Columbia Circuit sole jurisdiction of the matter, pending a review of the issue by the Pentagon.
Under Article III of the Constitution, Congress is given the authority to limit what issues the courts can decide, but the power has rarely been used.
Kagan’s November 2005 letter alleging the amendment would be akin to “dictatorships” was also signed by the deans of the Georgetown, Yale and Stanford law schools, including Obama State Department appointee Harold Koh, who was then dean of Yale.
“As professors of law who serve as deans of American law schools, we believe that immunizing the executive branch from review of its treatment of persons held at the U.S. Naval Base at Guantanamo strikes at the heart of the idea of the rule of law and establishes a precedent we would not want other nations to emulate,” the letter said.
Graham’s office did not immediately return a request for comment.
The letter was first reported by NPR’s Nina Totenberg.