In Hamdi, decided in 2004, Justice Stevens joined the dissenting opinion written by Justice Scalia.In Hamdi, Justice Scalia wrote:

Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution’s Suspension Clause, Art. I, §9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive’s assertion of military exigency has not been thought sufficient to permit detention without charge. No one contends that the congressional Authorization for Use of Military Force, on which the Government relies to justify its actions here, is an implementation of the Suspension Clause. Accordingly, I would reverse the decision below.[. . .] The allegations here, of course, are no ordinary accusations of criminal activity. Yaser Esam Hamdi has been imprisoned because the Government believes he participated in the waging of war against the United States. The relevant question, then, is whether there is a different, special procedure for imprisonment of a citizen accused of wrongdoing by aiding the enemy in wartime.

Scalia's dissent is premised on the idea that a citizen of the United States can not be declared an "enemy combatant" and instead must be tried in federal court for Treason. It is not clear that Scalia (or Stevens for that matter) would view the matter differently for non-citizens captured in the United States. Since the issue in Hamdi was whether the Executive can overrule the right to petition for a writ of habeas corpus, there is no logical reason to think that this reasoning should apply only to citizens, as the writ is available to all person held by the government in the United States (on what constitutes being held in the United States, see Rasuland Boumediene.

The opinion of the Court in Hamdi stated that:

At this difficult time in our Nation’s history, we are called upon to consider the legality of the Government’s detention of a United States citizen on United States soil as an “enemy combatant” and to address the process that is constitutionally owed to one who seeks to challenge his classification as such. The United States Court of Appeals for the Fourth Circuit held that petitioner’s detention was legally authorized and that he was entitled to no further opportunity to challenge his enemy-combatant label. We now vacate and remand. We hold that although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.

Thus Hamdi posits that the government can declare an American citizen (and any other person) captured on American soil (and presumably abroad)) an enemy combatant but that such person has the right to challenge such designation before a neutral decisionmaker.

In Hamdan, Justice Stevens wrote for the Court:

On September 11, 2001, agents of the al Qaeda terrorist organization hijacked commercial airplanes and attacked the World Trade Center in New York City and the national headquarters of the Department of Defense in Arlington, Virginia. [. . .] Congress responded by adopting a Joint Resolution authorizing the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks … in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” Authorization for Use of Military Force (AUMF), 115 Stat. 224, note following 50 U. S. C. §1541 (2000 ed., Supp. III). Acting pursuant to the AUMF, and having determined that the Taliban regime had supported al Qaeda, the President ordered the Armed Forces of the United States to invade Afghanistan. In the ensuing hostilities, hundreds of individuals, Hamdan among them, were captured and eventually detained at Guantanamo Bay.

[. . . A] Combatant Status Review Tribunal (CSRT) convened pursuant to a military order issued on July 7, 2004, decided that Hamdan’s continued detention at Guantanamo Bay was warranted because he was an “enemy combatant.” [. . .]

(Emphasis supplied.) Justice Stevens then proceeds to decide that the military commissions established by Congress were not eligible for trying Hamdan for the charges presented by the government. (See generally this post for more on that decision.)

Nowhere has Justice Stevens ever opined on whether the government can declare persons captured overseas as enemy combatants. Thus, Jonathan Turley is wrong when he writes "Stevens was the fifth vote in opposing such policies." That simply is not true.

Moreover, Kagan has never expressed the view that "anyone suspected of helping finance Al Qaeda should be stripped of protections and held under indefinite detention without a trial — agreeing with the Bush Administration. . . ." To the contrary, as I have repeatedly pointed out, Kagan said something quite different:

GRAHAM: [. . .] Now, the point we have to make with the world, would you agree, Dean Kagan, is that the determination that led to the fact that you're an enemy combatant has to be transparent?

KAGAN: It does, indeed.

GRAHAM: It has to have substantial due process.

KAGAN: It does, indeed.

GRAHAM: And it should have an independent judiciary involved in making that decision beyond the executive branch. Do you agree with that?

KAGAN: Absolutely.

GRAHAM: So we can go tell the world that this person is being held off the battlefield, not because one person says so, but because there's a process that led to that determination where you have an independent judiciary involved. Do you think that's important for the nation to make sure we have that kind of process?

KAGAN: I do, Senator.

(Emphasis supplied.) Elena Kagan is in large part a blank slate in terms of her public views. She needs to answer questions filling that slate. But it is simply inaccurate to say that her stated views on enemy combatants and indefinite detentions place her to the right of Justice Stevens.

Elena Kagan may be to the right of Justice Stevens on any number of issues. But nothing in her record, at least the part I am familiar with, tells us that this is the case.

It is because we know so little of her views, because the record of her public pronouncements is so sparse, that she must be forthcoming in her confirmation hearings.

Speaking for me only