Kagan’s position on the executive power’s authority in terrorism cases

Michael Isikoff reports in Newsweek about Obama’s ‘hidden benefit’: boosting the chances of the administration in prevailing in major terrorism cases including on granting Bagram detainees habeas rights, the state secrecy privilege or getting accountability for rendition abuses.

The reason: Kagan will inevitably have to recuse herself from an array of cases where she has already signed off on positions staked out by the Obama administration relating to the detention of terror suspects and the reach of executive power. As a result, the seat occupied by Justice John Paul Stevens—the most forceful advocate on the court for curbing presidential power—will be replaced by a justice who, on some major cases over the next few years, won’t be voting at all.
But the practical implications of Kagan’s selection for the Obama team are still very real: although there has  been a vigorous dispute over precisely how many cases Kagan would have  to recuse herself from, she would certainly have to do so in those—such  as those involving prisoners at Bagram—where she has already signed a  brief submitted by the government.

She would also most likely have to recuse herself from many  others—including those involving state-secret claims and the legal  rights of Guantánamo detainees—where she has “personally participated”  in decisions by her office to file briefs even if her name does not  appear on them, said Tom Goldstein, a Washington appellate lawyer who writes the Scotus Blog.

In effect, the “liberal” side just lost a  vote and arguably a crucial one on a court that on major issues of  executive power has been narrowly divided.

Andrew Klein comments upon the Kagan nomination at the Huffington Post as well. Quote:

Kagan’s selection appears to me as emblematic of the Obama administration as either passing the buck on or embracing the Bush approach to executive power.(…)

Kagan may very well prove to be something of an albatross around the  Obama administration, both in real time and in the textbooks, as she  represents the Executive Branch far outpacing the courts, Congress and  public opinion when it comes to dealing with terrorism, domestic and  abroad. As Obama works to make sense of America’s trajectory as the  once-great-now-hampered world power by keeping Congress in the loop and  talking directly to the American people, he’s nominating Supreme Court justices who will give his and subsequent administrations the legal elbow room for torture and warrantless wiretapping. (…)

The Obama administration may not be trafficking with those policies, butI certainly am not comfortable seeing this legal gray area passed on to a future president with less nuance and sense of purpose than Obama.

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