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Solicitor General Elena Kagan will be President Obama’s second Supreme Court nominee. The emerging conventional wisdom is that Kagan, a rare nominee for the high court who hasn’t been a judge, is a very smart blank slate. On at least one category of issues that Kagan will face — the intersection of national security and law during a time of war — that conventional wisdom looks correct. But there’s a proxy for that set of issues, however inexact, that offers a few clues in advance of her confirmation hearings: Kagan’s deference to executive power.
President Obama is more than four months past the deadline he set to shutter the internationally infamous Camp Delta War on Terror prison and interrogation facility here. Approximately 180 detainees remain behind the wire and within the walls of the seven camps of the prison. They have been here for years and most have never been charged with a crime or wartime offense. Attorneys representing Omar Khadr, a Canadian citizen imprisoned here as a teenager in 2002 and one of the few charged with a crime--murder and material support for terrorism-- will argue at a pre-trial hearing tomorrow that coerced testimony should be banned from his military commission trial.