News Release

Byrd, Kagan Hearings and the Constitution


CBS News reports: “The Senate Judiciary Committee will suspend Solicitor General Elena Kagan’s Supreme Court confirmation hearing from 10 a.m. to 4 p.m. on Thursday while the late-Sen. Robert Byrd lies in state at the Capitol.”

Byrd famously made a habit of carrying a copy of the U.S. Constitution in his shirt pocket. In 2004, he succeeded in passing legislation that deemed September 17 “Constitution Day.”

Byrd is prominently featured in the 2007 film “Body of War” by Phil Donahue.

During the Kagan hearings, several Republicans urged Kagan to be a “strict constructionist” (Sen. Tom Coburn, R-Okla.). Meanwhile, many Democrats argued she would “uphold the Constitution” (Sen. Dick Durbin, D-Ill.). Several legal analysts however warn that both Democratic and Republican administrations have been violating basic Constitutional rights.

Available for interviews:

Buttar is executive director of the Bill of Rights Defense Committee, which recently wrote a letter to the Senate Judiciary Committee.

Professor of law at the University of Illinois, Boyle is author of Tackling America’s Toughest Questions. He said today: “After 9/11 Sen. Byrd made repeated appearances in the Senate condemning violations of the Constitution, the war against Iraq and the Bush police state tactics. During the same period, Kagan was remarkably silent and has supported most of those Bush policies in her capacity as U.S. Solicitor General. As Dean of Harvard Law, she hired Jack Goldsmith who wrote torture memos for Bush and is testifying on Kagan’s behalf.”

Fein was Associate Deputy Attorney General and General Counsel to the Federal Communications Commission under President Reagan and is author of the forthcoming book, American Empire: Before the Fall. He raises four major ways that the Constitution and Bill of Rights are being violated:

“1. Violations of due process: Detentions of enemy combatants indefinitely without accusation or trial; military commissions that combine judge, jury, and prosecutor in a single branch; detentions at Bagram prison with no right to habeas corpus; listing of organizations and individuals as global terrorists based on secret evidence; targeting American citizens abroad for assassination based on the President’s say-so alone.

“2. Fourth Amendment violations: Interceptions of U.S. email and phone communications without individual warrants under new FISA amendments; Patriot Act acquisition of business records without probable cause.

“3. Secrecy: Executive branch refusals to respond to congressional subpoenas or claims of executive privilege to conceal from Congress such practices as waterboarding or enhanced interrogations techniques or targeting methodology for predator drones that indiscriminately kill militants and innocents alike.

“4. War powers: Congress’ delegating to the President or acquiescing in the President’s decision to initiate war in Iraq, Pakistan, etc. The Founding Fathers unanimously agreed that only Congress had the power to authorize the initiation of war because the President would inflate danger to commence war to capture more power and leave a mark on history.”

For more information, contact at the Institute for Public Accuracy:
Sam Husseini, (202) 347-0020