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Pentagon had doubts about Kagan over military recruiting on campus

By Bill Mears, CNN Supreme Court Producer
  • Senate Judiciary Committee releases Defense Department memos, records
  • Memos, records focus on Pentagon's efforts to recruit at Harvard
  • Kagan was dean of Harvard Law School from 2003-2009
  • Kagan had opposed recruiters on campus because of military's "don't ask, don't tell" policy

Washington (CNN) -- New documents released Saturday may add new fuel to the debate over Supreme Court nominee Elena Kagan, a week before her Senate confirmation hearing begins.

The new documents focus on Kagan when she was dean of Harvard Law School. Pentagon officials had deep concerns whether she would cooperate with military recruiters, just days after the Supreme Court in 2006 allowed the recruiters back on campuses.

Senate Judiciary Committee Chairman Patrick Leahy, D-Vermont, said Saturday that Kagan acted responsibly and allowed military recruiters at the Harvard Law School. "The materials produced by the Department of Defense provide further documentation that military recruiters were never barred from the campus of Harvard Law School, neither before Elena Kagan became Dean, nor during her tenure," Leahy said in a statement. "The unfair charge made by some that Elena Kagan broke the law as Dean continues to have no basis in law or fact."

Kagan's strong views on the recruiting issue have drawn conservative criticism.

The Senate Judiciary Committee released thousands of Defense Department memos and records, dealing with the Pentagon's 12-year-effort to recruit at Harvard University near Boston. Kagan was dean of the law school from 2003-2009, when she became the administration's solicitor general.

The committee's ranking member, Sen. Jeff Sessions, R-Alabama, earlier this month had requested release of that material.

Kagan and other academics had actively sought to try and block military recruiters from Harvard because of the Pentagon's current "don't ask, don't tell" policy on removing openly homosexual service members. Kagan supported other schools challenging a federal law -- known as the Solomon Amendment -- requiring that recruiters be given equal access or face the loss of federal funding. The Supreme Court unanimously upheld the law on March 6, 2006.

That same week, a top Pentagon official wrote colleagues in an internal memo of the department's efforts "to limit the polarizing nature of the anti-Solomonites who now rattle sabers over an intent to shout down the military."

William Carr, then deputy undersecretary for military personnel policy noted, "Dean Kagan is a case in point because she reportedly 'encouraged students to demonstrate against the presence of recruiters... (and) to express their views clearly and forcefully.' Not a true fan of 'equality and scope' it would appear."

Just four months after taking the job as dean, in October 2003, Kagan offered students her thoughts in a campus wide e-mail on giving recruiters equal school access: "This action causes me deep distress. I abhor the military's discriminatory recruitment policy." She called it "a profound wrong -- a moral injustice of the first order."

The 1996 Solomon Amendment allows the defense secretary to deny federal grant money to universities if they prevent military or ROTC recruiting on campus. Harvard stood to lose millions if it refused to comply, so the school agreed in to alllow recruiters to use the full facilities of of the Office of Career Services.

Harvard at the same time supported lawsuits by other colleges, contesting the law. In Rumsfeld v. FAIR, the high court unanimously upheld the Solomon Amendment. "A military recruiter's mere presence on campus does not violate a law school's right to associate, regardless of how repugnant the law school considers the recruiter's message," said Chief Justice John Roberts.

A month after that ruling favoring them, Pentagon officials proposed an "olive branch" initiative. One memo stated, "We need to educate and train our recruiters better and not allow events or school officials to have us agree to separate ourselves from the main body of civilian employer recruiters attending the job fair. What's the saying, 'divide and conquer.'"

Supporters of Kagan-- including many faculty members and students-- have defended her leadership during the recruiting crisis, saying as dean, she was in a tough position of accommodating a policy many had opposed on moral and political grounds. They said despite her personal concerns, she actively worked to ensure the military had appropriate access, in compliance wit the law.

A March 2000 memorandum -- when Kagan was a professor-- indicates a Harvard Law recruiting visit attracted about 30 students, several of whom distributed leaflets entitled, "JAGS HUNTS GAYS," referring to military lawyers under the judge advocate general. Recruiters were not allowed to advertise their visit on base or use the Career Services Office.

Officials worried about future visits. "Given the attitude of the Harvard administration, however, our reception might not be as congenial as in the past, without some like [student's name removed] to serve as our point of contact."

Two years later, the situation had not improved much. The school still would not coordinate the DoD visits, relying on individual students and student organizations. "Without the help of the Veteran's Group, we would be unable to recruit at Harvard," concluded a March 13, 2002 memo. "Our advertising is severely limited by the school's current policy toward the military."

A bill is currently being drafted in Congress to repeal the "Don't Ask, Don't Tell" policy. President Barack Obama, during his January State of the Union address, promised to work with Congress and the military to enact a repeal.

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