Kagan, Patraeus and the enemy extreme

Amidst a cascade of world events, Barack Obama announced the nomination of Elena Kagan to the Supreme Court on Monday. The LA Times reported from Washington Tuesday that “Elena Kagan’s limited record may smooth her way.” Quick on cue, USA Today reported that “Kagan has decent public backing,” and cited a Gallup poll in which 40 percent of respondents rated her an “excellent” or “good” choice, while only 14 percent call her a “poor” one.

Elena Kagan’s ‘outsider’ status is being touted by Arizona Republican Jon Kyl and prominent Democrats as a blank slate advantage, a stellar new trend that prompts such Associated Press headlines as, “Senators to query Kagan, but don’t expect answers.” It’s funny how pollsters can derive “answers,” while senators literally don’t want to try. Ignorance is strength?

Congress, the point of your approval is to provide a check on unlimited executive discretion, not to embody the apathetic theatre of an outmoded Constitution.

Kagan is on record saying “That someone suspected of helping finance al-Qaeda should be subject to battlefield law — indefinite detention without a trial — even if he were captured in a place like the Philippines rather than a physical battle zone.” Can the Harvard Dean, who “so loves the law, not just because it’s challenging, or endlessly interesting,” extrapolate?

There has been an arbitrary boom in this suit of tyranny lately: notions of citizenship that can somehow be revoked against one’s will without trial, government suspicion which trumps due process and ‘innocent until proven guilty.’

Just in case we forgot who the new terrorists were, Rudy Giuliani chimed in yesterday to remind us his analysis of Elena Kagan: She is not an “extremist.” Thanks, Rud. Now intel won’t have to run the terror watch list when it spies on camera the Queen of Hearts head into toward former employer Goldman Sachs (no joke).

Right-wing talk radio has lately seen brilliant flourishes of the libertarian, but neoconservative elements emerged strongly in the past two weeks, on the string of terror such as Faisal Shazad. The narrative that Obama failed to secure our nation from the Pakistani-trained would-be bomber and his Christmas underpants predecessor proved too tempting. “Bush kept us safer.” Out of nothing, no death, no explosion but for BP, the fetish of the post-9/11 American spirit was summoned from the grave to haunt the American people.

In the fall of 2001, we attacked Afghanistan in precise retribution for the terrorism of 9/11. The war was going to be quick, operational, a snip-snap redux of the clean Persian Gulf. “Shock and Awe.” By October 26, the Patriot Act was law.

Today, the drawdown in Iraq is underway, and contracts to the largest Iraqi oil field have been purchased by British Petroleum. But today, we are also explicitly fighting the Taliban, regional resistance to American efforts at nation building in the Middle East. Our President cracks a joke to the Press Corps about a drone strikes on the Jonas Brothers four days before the U.S. expands predator operations in tribal regions of western Pakistan; you know, to deliver to the American public that sacred promise of Osama bin Laden.

It isn’t funny anymore. War is morally and spiritually taxing, yet the commander in chief refuses to admit that a war begun on limited retributive premises has been propagated into open fire on all resistance to terror profiteers and the military they train, including U.S. citizens.

On May 6, MSNBC’s Andrea Mitchell interviewed Gen. David Patraeus about a “new generation of terror” and the allegedly Pakistan-trained Faisal Shahzad, who had attempted to blow up Times Square.

The American people do not need a “new generation of terror” from the floors of Washington. They do not need Sen. Scott Brown to sell his Tea Party laurels out to the security state, to suggest - square in the face of High Court precedent - that the government can revoke the citizenship of “extremist” individuals. Brown, Lieberman, McCain, Bloomberg, o throw decades of High Court precedent affirming that citizenship can only be relinquished voluntarily, into the dustbin of History.  

Patreaus features the new “extremist” character prominently in his responses:

Extremists in many cases would like to be transnational organizations, not just active in Pakistan, but indeed active elsewhere, al Qaeda of course is foremost among them. …It may be that the Pakistani Taliban has some of these as well…That’s in character, if you will, for extremist groups, because the way they generate resources, the way they get recruits, the way they can proselytize, is indeed by successful high profile operations, you’ve seen that as well with the al Qaeda in the Arabian Peninsula, Anwar al-Awaliki: could be many Americans.” At MSNBC.com the May 6 transcript reads “(UNINTEL  PHRASE)” where I hear “could be many,” but “American” blares in both and al-Waliki’s name is absent from the transcript. Check for yourself.

Wikipedia explains that Anwar al-Awalaki, “With a blog, a Facebook page, and many YouTube videos, has been described as the “bin Laden of the internet,” though he denies such labels. The New York Times reported on April 6 that in a rare if not unprecedented move, President Obama had authorized the targeted killing of Anwar al-Awlaki, a citizen of both the United States and Yemen. The action raises profound Constitutional questions, few of which have been mentioned in Elena Kagan proceedings.

Andrea Mitchell then asks Gen. Patraeus in the interview that if in Pakistan we have “stirred the hornet’s nest, are we radicalizing others like the suspect in the Times Square case?”

Patraeus said that “certainly there will be groups that will use what we do, wherever we do it, and whatever we do, frankly, they will find some way to stir up emotions of our actions, and we just have to be cognizant of it.”

Is the case of Faisal Shahzad, a U.S. citizen, a “new generation of terrorists?” At that point, discourse was still realistic. But something Avatar happened in Patraeus’ response.

The extremist elements out there are learning and adapting.” You have to be the “side that does it the fastest…you have to constantly think, ‘what is next?’”

“We can’t allow cyberspace, which is a battlefield just like a ground battlefield, to be uncontested space. We have to be active there as well while certainly still ensuring, uh, the rights and freedoms of Americans, to be sure.”

Patraeus spoke in the discourse of espionage and sedition, not terrorism. According to Patraeus, anyone who speaks with “emotion” about American military “actions” in “cyberspace” is in a “battlefield,” and subject to military codes of law as an “extremist.”

Senators, ask Ms. Kagan to extrapolate upon her Constitutional interpretation of the “Enemy Belligerent Interrogation, Detention and Prosecution Act of 2010” introduced by John McCain in March. Forget Miranda rights, this bill would allow the government to detain American citizens, hold them in military custody and subject them to advanced interrogation.

While this bill worked its way to committee, nine members of the Hutaree militia were detained on charges of violent threats in Michigan. Despite the fact that U.S. District Judge Victoria Roberts of Detroit concluded that members of the Hutaree were neither a flight risk nor a danger to the community and could be released on restricted bond. Federal prosecutors have not been able to explain any “differentiation between the conduct” of the nine indicted and 25 unindicted, yet somehow they succeeded in appealing the ruling to have the Militia detained.

Look at the Hutaree, with their God and guns, as they discuss the preemption of Constitutional tyranny. They are dangerous. Indeed the militia are wrong.

The right to revolt is in the Declaration of Independence, and it is our duty. Before any Supreme Court nominee is appointed, Washington must settle one most pressing question: are Americans the extremists?

John Brown welcomes comments at jbrown@mndaily.com.