Former Gitmo Prosecutor: Kagan Did Not Follow the Law When She Barred Military Recruiters from Harvard Law

By Pete Winn | May 12, 2010 | 10:19 PM EDT

President Barack Obama gives Solicitor General Elena Kagan a kiss after announcing he has nominated her to serve on the U.S. Supreme Court on Monday, May 10, 2010. (AP Photo/Susan Walsh)

( - A former Army Judge Advocate General (JAG) officer, who prosecuted terrorists in front of military commissions at Guantanamo Bay, says Supreme Court nominee Elena Kagan displayed poor judgment as dean of Harvard Law School.
“Her decision to keep JAG recruiters off of Harvard Law School grounds, and to not allow them to come to Harvard and talk to law students about joining the JAG Corps, was wrong,” said Prof. Kyndra Rotunda, author of the book “Honor Bound: Inside the Guantanamo Trials.”
Kagan already has drawn fire from Senate Republicans because she decided in 2005 to reinstate a ban keeping military recruiters from the law school because, she said, the military policy discriminated against homosexuals. 
But Rotunda, who is now a law professor at Chapman University Law School in Southern California, said Kagan did something more than simply disagree with the military over its policy regarding homosexuals -- she refused to follow the law, which required her to make room for the military recruiters.
“(I)t wasn’t just a policy – it was a federal law,” Rotunda said. “And when she disagreed with federal law, she just simply decided not to follow it. And the Supreme Court unanimously found that the law was constitutional, and there was no reason to keep recruiters off of law school grounds."
Kagan argued at the time that she was simply following the lead of the Third Circuit Court of Appeals, which had ruled in 2004 that the government could not withhold federal funds from universities that ban military recruiters from campus because of the military prohibition against homosexuality.
The law, referred to as the Solomon amendment for its sponsor, the late New York congressman Gerald Solomon, says that any university that received federal money must allow campus access by ROTC or military recruiters “in a manner that is at least equal in quality and scope to the access to campuses and to students that is provided to any other employer.”
But the Third Circuit decision went to the Supreme Court, where the justices placed a stay or hold on the appeals court order that had barred the law from being enforced. 
Kagan, however, specifically acknowledged that she was deliberately ignoring the fact that the law was in effect..
“Although the Supreme Court’s action meant that no injunction applied against the Department of Defense, I reinstated the application of our anti-discrimination policy to the military (after appropriate consultation with University officials) in the wake of the Third Circuit’s decision; as a result, the military did not receive OCS (Office of Career Services) assistance during our spring 2005 recruiting season,” Kagan wrote in the 2005 “friend of the court brief” she and and 40 other professors signed.
Kagan said she was forced to readmit the military recruiters only by the prospect of losing federal tax dollars.
“My hope in taking this action was that the (Defense) Department would choose not to enforce its interpretation of the Solomon Amendment while the Third Circuit opinion stood. Over the summer, however, the Department of Defense notified the University that it would withhold all possible funds if the Law School continued to bar the military from receiving OCS services. As a result, I have decided (again, after appropriate consultation) that we should lift our ban and except the military from our general non-discrimination policy. This will mean that the military will receive OCS assistance during the fall 2005 recruiting season,” she wrote.
In Kagan's sefense, Senior White House Advisor David Axelrod said that she was simply upholding a policy that was already in place when she became dean.
But Rotunda, a former Army major, doesn’t buy that argument. She said Kagan, the dean of one of the nation’s top law schools, clearly refused to comply with a law simply because she disagreed with it.
“I think it showed poor judgment, which is demonstrated by the fact that all nine justices disagreed with her decision in that matter,” Rotunda said.
In a unanimous, 9-0 decision, the Supreme Court ruled that the Solomon Amendment was constitutional, and was enforceable on universities that received federal funds.
“When you have all nine Supreme Court justices saying the decision she made was wrong, that really says something about her judgment,” Rotunda said.
The issue goes far beyond whether the liberal legal scholar should have barred military JAG officers from on campus, or even how she views the military, the law professor  said.
“The concern is that she’ll make decisions based upon the outcome that she wants to see, instead of whether or not the Constitution and the law actually support that decision,” Rotunda said.
“I don’t think that kind of judicial activism is good for the Supreme Court. It’s not staying true to the letter and spirit of the Constitution,” she said. “I think we need judges that are going to apply the Constitution as written, apply the law as written, and reach decisions based on that – and not to reach decisions based upon what they personally would like to have happen.”