Kagan supported detaining terror suspects indefinitely without trial

By John Byrne
Monday, May 10, 2010 9:23 EDT
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Elena Kagan, President Obama’s selection for the next Associate Justice of the Supreme Court, says she supports holding terror suspects without trial — indefinitely, in some cases.

Questioned as to whether she’d support the detention of al Qaeda suspects without access to US laws — or even a trial to prove their guilt — Kagan told Sen. Lindsey Graham (R-SC) last year she backed the Obama Administration’s policy of “indefinite detention.”

Graham asked Kagan whether she’d apply battlefield law instead of criminal law if a suspect were believed to be financing al Qaeda.

“I do,” Kagan said.

Under military law, Graham noted that prisoners can be held without trial in an effort to keep them from returning to the “battlefield.”

Kagan’s response went farther than previous Administrations’ claims; she maintained that the battlefield can apply to terror suspects caught outside traditional war zones (agreeing with Graham, for example, that an alleged al Qaeda financier detained in the Philippines would not be granted access to US laws).

Both President Obama and former President George W. Bush have backed holding some suspected terror combatants without trial. In the case of Guantanamo Bay detainees, the Obama Administration has said they would hold prisoners without trial in some cases because the evidence against them has been tainted by suspects’ harsh treatment at the hands of their US jailers and would be inadmissible in a trial.

Kagan’s comments on indefinite detention seem to have new relevance after comments Sunday by Attorney General Eric Holder, in which he declared that even US citizens don’t need to be read their rights if they’re suspected of being involved in terrorism.

“If we are going to have a system that is capable of dealing, in a public safety context, with this new threat,” Holder said on ABC’s This Week Sunday. “I think we have to give serious consideration to at least modifying that public safety exception.”

Modifying that exception, Holder said, is “one of the things that I think we’re going to be reaching out to Congress to do – to come up with a proposal that is both Constitutional, but that is also relevant to our time and the threat that we now face.”

Holder said that the U.S. needs to examine whether the current rules regarding Miranda warnings give law enforcement agents the “necessary flexibility” when dealing with terrorism cases.

The Miranda warning requires law enforcement officials to inform suspects of their rights, including the right to remain silent. Conservatives have attacked the Obama administration for informing suspects of their right to remain silent because they believe it is antithetical to collecting valuable intelligence during situations in which lives may be at stake.

Holder’s comments come on the heels of a failed plot to detonate a Nissan Pathfinder in Times Square.

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