Seven Questions for Elena Kagan

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Written by Tucker Culbertson

In the past eight years, Justice John Paul Stevens has written monumental majority opinions on counterterrorism (Hamdan v. Rumsfeld and Rasul v. Bush) and the Eighth Amendment, which prohibits cruel and unusual punishment (Hope v. Pelzer and Atkins v. Virginia).  Of particular note is that in both areas of law, Justice Stevens and a majority of the Court have referred to, and even applied, international law in rendering constitutional judgments.  As we consider Elena Kagan’s nomination to the Supreme Court (especially her capacity to judge the Obama Administration in matters of national security,) Kagan’s regard for these opinions’ precedential force, and her stance on the use of international law in constitutional interpretation, should be closely questioned.

1. Why should we believe that a present Solicitor General can impartially judge claims against the Administration in which she now serves?

1. Why should we believe that a present Solicitor General can impartially judge claims against the Administration in which she now serves?

[A number of national security questions will likely reach the Court in the next two years.  Also, the civil commitment provision of a federal criminal law regarding sex offenders was recently teed up by the Court for an Eighth Amendment argument in U.S. v. Ashcroft:

“We do not reach or decide any claim that the statute or its application denies equal protection of the laws, procedural or substantive due process, or any other rights guaranteed by the Constitution. Respondents are free to pursue those claims on remand…]

2. What parts of the majority opinion in Hamdan v. Rumsefeld do you understand as binding precedent?

3. Do you agree with Justice Stevens’s analysis of the Geneva conventions in Hamdan?   In particular, do you agree with his – and the majority’s – assertion that the protections for detainees provided by Common Article III apply to the U.S.’s war with Al Qaeda because this war is “not of an international character”?

[Many interpreters read Common Article III’s discussion of “not international” conflicts to refer exclusively to intra-national affairs, such as revolutions and civil wars.  The Court, by contrast, read “not international” to mean not between two nation-states.  Consequently, the Court found that the minimum requirements of Common Article III reached the U.S.’s war with Al Qaeda.]

4. Beyond the Suspension Clause (addressed last year in Boumediene v. Bush), what do you understand to be the present precedent for determining the extraterritorial application of the Constitution?

[The state of the doctrine on constitutional extraterritoriality is murky.  The variables which have been central in prior cases on the issue include citizenship, the importance of the constitutional right at issue, the text of the constitutional clause at issue, and the impracticability or impropriety of applying the constitutional clause at issue in the context of  particular cases. Boumedienne has established a test for the right to the writ of habeas corpus in extraterritorial contexts, but clear statements of the present law governing other constitutional rights abroad (such as due process, equal protection, and freedom from cruel and unusual punishment) have not been issued.]

5. What is your opinion on the Court’s use of foreign and international law in recent precedent on cruel and unusual punishment?

6. Is such recourse unique and thus limited to Eighth Amendment cases?  Why?

7. When would an Executive’s assertion of the state secrets doctrine be rejected?

[The Obama Administration – through the office of  Solicitor General Elena Kagan – has surely equaled, if not exceeded, the W. Bush Administration’s use of the state secrets doctrine as grounds for arguing that federal courts should not even hear claims by present and former counterterrorist detainees.]