Harvard Law Dean Elena Kagan, President Obama’s choice to represent his administration before the Supreme Court, told a key Republican senator Tuesday that she believed the government could hold suspected terrorists without trial as war prisoners.

She echoed comments by Atty. Gen. Eric H. Holder Jr. during his confirmation hearing last month. Both agreed that the United States was at war with Al Qaeda and suggested the law of war allows the government to capture and hold alleged terrorists without charges.

If confirmed as U.S. solicitor general, Kagan, 48, will defend the administration’s legal policy in the courts.

During the Bush administration, the solicitor general argued for the White House’s war-on-terrorism policies, including the president’s decision to imprison foreign fighters and alleged terrorists at Guantanamo Bay, Cuba.


Last year, the Supreme Court dealt the Bush administration a setback when it ruled that these alleged “enemy combatants” had a right to be heard by a judge and to plead for their freedom. But the high court left unanswered the question of whether accused terrorists and others with suspected ties to Al Qaeda could be held for years without trial.

That issue is now before the Obama administration. The new president has announced that the U.S. military prison at Guantanamo Bay will be closed, and he has created a task force of lawyers and military officers to decide how to handle current and future detainees. The group will be led by Holder and Defense Secretary Robert M. Gates.

In 2004, the high court agreed with the Bush administration that battlefield prisoners can be imprisoned for the duration of the war. Its decision came in the case of Yaser Esam Hamdi, a U.S.-born Taliban fighter who was captured in Afghanistan. It is not clear whether the same applies to civilians who are captured as suspected terrorists.

Sens. Dianne Feinstein (D-Calif.) and Lindsey Graham (R-S.C.) both raised the issue Tuesday. Feinstein called it “a fundamental question as we consider the end planning for detainees as Guantanamo is closed.”


Graham, a former Air Force lawyer, stressed the stark difference between criminal law and the law of war. He and Kagan agreed that under criminal law, no person can be held indefinitely without a trial.

“Do you believe we are at war?” Graham asked.

“I do, Senator,” Kagan replied.

Graham cited the example of someone who is not carrying a gun or fighting on a battlefield. “If our intelligence agencies should capture someone in the Philippines that is suspected of financing Al Qaeda worldwide, would you consider that person part of the battlefield?” he asked. He added that he had asked the same question of Holder, who replied that he agreed that person was on the battlefield.


“Do you agree with that?” the senator said.

“I do,” Kagan replied.

Graham said that under the law of war, the government can say, “If you’re part of the enemy force, there is no requirement to let them go back to the war and kill our troops. Do you agree that makes sense?”

Kagan replied, “I think it makes sense, and I think you’re correct that that is the law.”


“So America needs to get ready for this proposition that some people are going to be detained as enemy combatants, not criminals,” Graham concluded.

Civil liberties advocates, including the American Civil Liberties Union and Human Rights First, have urged the Obama administration to follow the U.S. rules of criminal justice in such cases. Under these rules, civilians who are alleged to conspire with terrorists must be charged with a crime and given a trial.

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david.savage@latimes.com