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News Features

Elena Kagan’s shaky record

HUMANITARIAN LAW PROJECT V. HOLDER: A federal statute that criminalizes lending “material support” to groups deemed “terrorists” by the US is the most-used criminal statute in the war on terror. It’s also one of the vaguest — a veritable trap for the unwary. Probing the undefined and indefinable scope of this statute, the Supreme Court asked whether it was legally permissible to help “terrorist” groups “advocate peaceful means,” such as by filing a friend-of-the-court brief on their behalf. Kagan’s response: “[W]hen you tell people here’s how to apply for aid and here’s how to represent yourself within international organizations or within the US Congress, you’ve given them an extremely valuable skill.” This gives the concept of “material support” an extraordinarily expansive definition, and would arguably criminalize a lawyer’s efforts to encourage terrorist groups to avail themselves of lawful and peaceful means to make their case. In turn, it provides the executive branch — which has sole discretion in declaring groups to be “terrorist” — exceptional power.

UNITED STATES V. COMSTOCK: A 2006 law allows the government to seek further “civil commitment” for dangerous sex offenders nearing the end of their federal prison terms — essentially, sentencing them to an indefinite stay in federal custody. In a Supreme Court case challenging this law, Justice Antonin Scalia, ever the originalist, asked Kagan how the government claims such constitutional authority. “Because the Federal Government has a responsibility to ensure that release of the people it has in its custody is done responsibly,” Kagan replied. Adherents to constitutional limitations on government authority do a double-take at such expansive claims.

POTTAWATTAMIE COUNTY V. MCGHEE: Two Iowa men were convicted of a 1978 murder. They served 25 years before finding out that prosecutors had coerced key witness testimony and withheld exculpatory evidence. After the Iowa Supreme Court, in 2003, vacated one man’s conviction and sentenced the other to time already served, the two men sought damages for violations of their constitutional rights. The question of whether prosecutors could be held liable for such pretrial misdeeds went to the Supreme Court. In a friend-of-the-court brief, Kagan championed “absolute prosecutorial immunity” and asserted that holding these prosecutors accountable would have “untold social costs.” (Such as stopping prosecutors from convicting the innocent?)

KIYEMBA V. OBAMA: A landmark Supreme Court ruling in 2008, Boumediene v. Bush, gave Guantánamo Bay prisoners the constitutional right to challenge their detention via the ancient writ of habeas corpus, perhaps the oldest and most revered right achieved by a free people in Anglo-American judicial history. But the decision was short on specifics — like whether and under what circumstances federal judges could actually order a prisoner’s release. Kiyemba seeks to address this ambiguity, in a case where the government concedes that a group of Chinese Muslims, known as Uighurs, detained without charge in Guantánamo for eight years and counting, are no longer a threat.