[Stephanie Reich is an investigative journalist and a CAM volunteer. She is a longtime activist on issues pertaining to the Arab world and works with various organizations including the Alliance for Global Justice and Jewish Voice for Peace. Ms. Reich has written for the Middle East Report, United Palestinian Appeal, and for our very own CovertAction Quarterly. In the Spring of 2002 (CAQ issue #72), Reich wrote an article covering U.S. involvement in the Iran-Iraq war and the U.S. attack on Iraq in 1990-1991. In this timely piece on President Trump’s Supreme Court nominee Brett Kavanaugh, she explores his positions on torture and mass surveillance—issues on which the Court will likely continue to move further to the right.—Editors]

Judge Brett Kavanaugh, who currently serves on the United States Court of Appeals for the District of Columbia, faced confrontation from several Democratic senators on the Senate Judiciary committee during his confirmation hearing for the Supreme Court of a week ago. The Senate Judiciary committee questioned him about the accusation of sexual assault by Dr. Christine Blasey Ford, Deborah Ramirez, and Julie Swetnick during his high school and college years. Kavanaugh angrily and tearfully denied all charges and repeatedly bragged about his academic achievements, promotion of women in the legal profession, and his stature as a lawyer and a jurist. His behavior prompted the circulation of two letters that hundreds of law professors signed, questioning his professionalism and temperament as a potential Supreme Court Justice. (He had called the line of inquiry of the Senators mentioned above “a calculated and orchestrated political hit by Democrats,” fueled by “millions of dollars in money from outside leftwing opposition groups.”) One of the letters, circulated and signed by female law professors, stated that Judge Kavanaugh showed contempt for women by pointedly asking Senator Klobuchar about her drinking habits when she tried to ask him about his own.[1] Despite Dr. Ford’s emphatic identification of Kavanaugh as her assaulter during her testimony, he condescendingly stated that while he didn’t dispute her having been sexually assaulted at some point, he said that he didn’t do it. In fact, he denied ever having sexually assaulted anyone at all.

In addition to the sexual assault charges, alleged drunken behavior and lack of judicial temperament…

The possibilities of guilt and perjury concerning the sexual assault issue make Judge Kavanaugh unsavory enough as a Supreme Court candidate. But his positions on other issues make him downright dangerous. First, there is his position on the National Security Agency (NSA’s) massive domestic telephone surveillance of U.S. citizens. Judge Kavanaugh’s position on this issue even alarmed many conservative and Republican senators and lawyers.[2]

The roots of the NSA’s metadata telephone surveillance program lie in Section 215 of the USA PATRIOT Act, which empowered the FBI to request, and the Foreign Intelligence Surveillance Court to order, any records, documents, books or tangible things that might facilitate  investigations of people thought to be associated with “international terrorism.”[3] Between May, 2006 and November 29, 2015, when the USA Freedom Act limited the NSA’s metadata program, U.S. law enforcement and intelligence agencies were able to obtain massive rosters of telephone numbers of United States citizens from telecommunications companies. These rosters were then kept in Government data bases, and the NSA was able to select from them telephone numbers of individuals deemed to be associated with ‘international terrorist organizations.’  Although the NSA did not monitor the content of the calls, the Agency used these call records for further information on the suspects.[4]

In June 2013, Edward Snowden leaked information revealing details about this program.[5] Immediately after the Snowden revelations, Larry Elliot Klayman, a Verizon customer, and other subscribers to telephone services, filed a suit with the U.S. District Court of the District of Columbia, arguing that the NSA’s metadata surveillance program violated the Fourth Amendment. The suit called for the court to prohibit the NSA’s further metadata collection, retention, and analysis of call records while the suit was pending. The ruling of December 16, 2013 was that the NSA metadata collection might indeed be in violation of the Fourth Amendment, and it granted, but at the same time stayed, the preliminary injunction against the telephone surveillance.[6] Ultimately, on November 20, 2015, the United States Court of Appeals for the District of Columbia reiterated an earlier stay, issued on November 16, 2015, of the injunction against the metadata program by denying the Plaintiffs’ emergency petition for a rehearing en banc review of that decision.

Kavanaugh rules that Government lawbreaking is “reasonable”

Judge Kavanaugh wrote his own opinion about that ruling, stating that the government’s collection of telephone call records from the telephone service companies, a third party, did not constitute a search under the Fourth Amendment. Kavanaugh further argued that even if the gathering of the metadata had constituted a search, it was a reasonable one since it met the ‘special need’ of preventing terrorist attacks against the United States.[7]

In 2016, Mike Pompeo, former director of the Central Intelligence Agency and now United States Secretary of State, and current Attorney General Jeff Sessions both advocated the repeal of the USA Freedom Act. Mike Pompeo called for legislation re-establishing the collection of metadata and loading it into a database which would also contain financial and lifestyle information on U.S. citizens, including those unsuspected of wrongdoing. Sessions, on his part, advocated legislation which would expand the types of internet data that the FBI could intercept without warrants. Sessions, Pompeo, and other national security and law enforcement officials justified their advocacy of reinstated and expanded surveillance by pointing to what they called the threat of small, difficult to detect terrorist plots, like the one leading to the killing of forty-nine people at a gay nightclub in Orlando, Florida in June 2016.[8]

Then there are the related issues of torture and the treatment of ‘enemy combatant’ detainees captured in the ‘war on terrorism.’ These issues date back to Judge Kavanaugh’s tenure as Associate White House Counsel (2001-2003), and as President George W. Bush’s Staff Secretary (2003-2006). During the second Bush Administration, lawyers from the Justice and Defense Departments issued memoranda about the interrogation and detention of ‘enemy combatants.’ For instance, memoranda from the Justice Department for January 2002 provided arguments that U.S. officials might use to avoid war crimes charges for detention and interrogation of prisoners, and legal justifications for Bush Administration officials’ assertions that the Geneva Conventions did not apply to detainees from the Afghanistan war.

Presidents are free to ignore international treaties and federal statutes

In a memorandum of later in the month, White House Counsel Alberto R. Gonzales affirmed this argument, and urged President Bush to make it an official declaration, so that U.S. officials could avoid exposure to the Federal War Crimes Act of 1996. A March 2003 memorandum from the Defense Department’s legal task force asserted that the President was bound neither by international treaties prohibiting torture, nor by Federal anti-torture statutes, because his position as commander in chief authorized him to approve any tactic that protected U.S. national security. This memorandum also held that interrogators could protect themselves from prosecution by arguing that they were acting under the orders of superiors. In December of 2003, military lawyers prepared a letter to the International Committee of the Red Cross, in response to the Red Cross’s concern about conditions in the Abu Ghraib prison. The letter stated that it was a military necessity to isolate some of the inmates from others because of their value to intelligence, and that it was legal to treat prisoners held as security risks differently from prisoners of war or ordinary criminals.[9]

Kavanaugh redefined “torture” to insulate Bush and his torturers from the law

Jay S. Bybee, of the Justice Department’s Office of Legal Counsel, issued a particularly chilling memorandum to White House Counsel Alberto Gonzales in August of 2002. This memorandum outlined the standards of conduct for interrogation codified in Title 18 of the U.S. Code, Sections 2340-2340A. It interpreted the Code’s definition of torture, “inflicting or intending to inflict severe pain and suffering, whether mental or physical,” as referring only to actions which caused physical pain so intense as to result in injuries like organ failure, impairment of a bodily function, or death.

Severe mental pain, according to Bybee, meant psychological damage that lasted months or years, and which was the result of threats from interrogators of imminent death or the infliction of the physical pain defined above. Equivalent mental pain was to result from interrogators’ threats to use personality-altering or sense-disrupting drugs or procedures on a detainee, or from threats to inflict any of the above-described physical or mental damage on a third party. The Bybee memorandum concluded that prosecution of interrogators was only valid under Sections 2340 and 2340A of Title 18 of the U.S. Code when they had intentionally inflicted the above-described damages on detainees, and that in the context of the war against Al-Queda and its allies, such prosecution of interrogators might interfere with the President’s conduct of war as commander in chief, and therefore, be unconstitutional.[10]

Kavanaugh lies to Senate about his role in Bush torture policies

At his confirmation hearing in 2006 for his current seat on the U.S. Court of Appeals Bench before the Senate Judiciary Committee, Judge Kavanaugh insisted to Senators Arlen Spector (R-PA), Chuck Schumer (D-NY), Richard Durbin (D-IL), Patrick Leahy (D-VT), and others that he had not participated in any discussion about torture, and had not been involved in questions regarding the rules about detention of enemy combatants during his tenure as Associate White House Counsel.[11] Alberto Gonzales, Kavanaugh’s boss at the time, affirmed Kavanaugh’s non-involvement plea, as did Tim Flanigan, former Deputy White House Counsel, who stated that Brett Kavanaugh was not authorized to know about the Administration’s interrogation policy, since the Office of the White House Counsel handled it in a highly compartmentalized way.[12]

However, in 2007, The Washington Post reported that Brett Kavanaugh had actually participated in a meeting held in the Office of the White House Counsel in 2002. The theme of this meeting had been an inquiry concerning the ruling that the Supreme Court would issue on President George W. Bush’s contention that he could unilaterally designate U.S. citizens as ‘enemy combatants,’ and the practice of detaining such combatants without counsel. The White House Counsel staffers were particularly interested in the opinion of Justice Anthony Kennedy, a swing voter whom Kavanaugh had served as a law clerk.[13]

The 2006 Senate Judiciary Committee also tried to question Brett Kavanaugh about his position on President Bush’s ‘signing statements’ practice, an issue that came into the foreground during Kavanaugh’s years as President Bush’s Staff Secretary. The Senate Judiciary Committee considered this issue important not only because of what it meant regarding Kavanaugh’s position on torture and detention, but also because of what it revealed regarding his views on the extent of Presidential war powers. Signing statements were official statements that President George W. Bush routinely attached to bills upon signing them into law, to the effect that he would interpret the new law in accordance with what he understood to be his own constitutional powers.[14]

The signing statements practice proved especially dangerous, though, when it was applied to Senator John McCain’s (R-AZ) anti-torture amendment to the National Defense Spending Bill of 2005. This amendment stated that cruel, inhuman and degrading treatment of detainees in U.S. custody was unlawful regardless of where they were held, and Senator McCain had issued it in response to two developments. The first was the Bush Administration’s secret memorandum of 2002 permitting the President to authorize interrogation tactics that violated domestic and international anti-torture laws when he considered national security to be at stake. The second development was Attorney General Alberto Gonzales’ statement, early in 2005, that the Constitution did not apply to interrogators operating in foreign locations, and, therefore, neither did anti-torture laws and treaties which the U.S. had enacted or ratified restrict interrogation tactics. After being unable to secure a veto of the amendment, President Bush signed it later in the year, attaching to the amendment a signing statement asserting his constitutional authority, as commander in chief, to violate the statute when he believed that the ‘war on terrorism’ required it.[15]

Kavanaugh insists that the U.S. doesn’t torture (according to his definition)

When Senator Patrick Leahy (D-VT) asked Kavanaugh about his view of this signing statement at his confirmation hearing of 2006, Kavanaugh tried to evade the question by insisting that the President had repeatedly emphasized that the United States did not torture, and that he would follow the law as it was written. Senator Leahy finished his questioning by remarking that this response seemed incongruous, given the recent events at Abu Ghraib prison in Iraq.[16]  Judge Kavanaugh’s opinions on certain sample cases demonstrate that he places broad Presidential war powers and ‘national security’ far above individual rights. Kavanaugh concurred with the decision of the Court of Appeals for the District of Columbia that upheld the legality of Ghaleb Nassar Al-Bihani, a Yemeni citizen, and which denied his petition for an en banc rehearing of his case (Al-Bihani v. Obama), decided in 2010. His arguments were that the war against Al-Qaeda the Taliban and other ‘terrorist organizations’ was continuing, and therefore, that the Authorized Use of Military Force Act of 2001 (AUMF) remained in effect. This Act had been passed shortly after the attacks on September 11 of that year, and it authorized President George W. Bush to use all necessary and appropriate military force against nations, organizations, or persons directly or indirectly connected with the September 11 attacks. Kavanaugh’s statement refuted Al-Bihani’s argument that international law norms were enforceable limits on Presidential war-making authority under AUMF, because these norms had not explicitly been incorporated into U.S. statutes by the political branches of the U.S. government. Furthermore, the AUMF had not, itself, incorporated judicially enforceable international law limits on the President’s conduct of war into its language. Kavanaugh also argued that Congress was aware of the fact that there already existed constitutional limits to a president’s war-waging powers. Because there was no organic legal connection between the standards of international law on which Al-Bihani was basing his petition for release from detention and the AUMF, U.S. courts were incompetent to try to enforce such standards.[17]

In the case of Abdul-Razzaq Ali v. Obama, decided in December 2013, Judge Kavanaugh argued to uphold a District Court decision to deny his petition for habeas corpus of 2005. (Abdul Razzaq Ali had been detained at Guantanamo Bay since his capture in Pakistan in 2002.) Kavanaugh held that Ali’s presence in a Pakistani guest house housing Al-Qaeda operatives and electronic equipment that U.S. forces captured, together with his instruction of the operatives in the English language, constituted ample evidence that he, himself, belonged to Al-Qaeda. Kavanaugh emphasized that given the powers that the Authorization of the Use of Military Force (AUMF) Act of 2001 had given to the President, the U.S. government was within its rights to detain Abdul-Razzaq Ali. Nor did Ali’s argument about the lack of conclusive evidence of his Al-Qaeda affiliation hold, given his accommodation choice in Pakistan and his activities there.

Imprisonment without proof of guilt is fine if the President says so

Kavanaugh further argued that since Ali had been detained in connection with the United States’ ongoing war with Al-Qaeda and organizations like it, the United States government was not obliged either to prove his guilt or set a time limit regarding his detention. The purpose of military detention was to keep combatants off the battlefield, so, therefore, such detention could last until the end of the war and did not require proof of guilt.[18]

The case of Meshal v. Higgenbotham involved a U.S. citizen, Amir Meshal, who had been detained by the Federal Bureau of Investigation in Kenya, where he had been arrested by Kenyan authorities after fleeing the outbreak of violence in Somalia, his original destination, in 2006. When the FBI learned of his presence in Kenya, FBI agents went there to interrogate him in order to gain a confession from him about his alleged affiliation with Al-Qaeda. They continued to interrogate him for four months while transporting him to Ethiopia and Somalia at various intervals.  During this investigation, his interrogators kept him in solitary confinement, threatened him with extradition to Israel and rendition to Egypt, and denied him counsel.

U.S. officials can torture with impunity — as long as they do it on foreign soil

Consequently, Meshal sued the FBI for damages under the precedence of the 1971, case of Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, whose precedent gave plaintiffs the right to sue federal government agencies for damages they suffered during a criminal investigation, The district court in which he filed his case dismissed it,[19] and Judge Kavanaugh affirmed that decision on appeal, on the grounds that there existed no statute allowing a plaintiff to sue United States officials for damages they had caused while conducting criminal investigations on foreign soil. The more significant reason that Kavanaugh gave for upholding the dismissal was that the criminal investigation under the Bivens case had been connected to a routine narcotics investigation, whereas the Meshal case involved national security.[20]

A sexual predator
An apologist for torture
A proponent of “President-as-king”

…What’s not to like?

If Judge Brett Kavanaugh has, in fact, committed the sexual violations that three women have alleged, he is certainly unfit for the Supreme Court, the judiciary in general, and indeed, the American Bar. His evasive, and frequently defiant, approach to the Senate Judiciary Committee’s questions at last week’s Confirmation Hearing also cast doubt on his professionalism and non-partisanship. However, he has also demonstrated frightening and dangerous political viewpoints through his legal opinions. These opinions show his willingness to place ‘national security’ above principles enshrined in both international and U.S. law which protect all persons in U.S. custody–U.S citizens or not–from torture, infinite detention, and the right to counsel. Secondly, he has shown that he has little regard for the constitutional principle of separation of powers among the branches of government. Instead, his legal opinions show that he has consistently worked to erode the powers of oversight that the Judiciary has over the actions of the President. All of these factors, coupled with his evasiveness about discussing them frankly with members of the Senate Judiciary Committee, make a vote against him as a Supreme Court Justice imperative.

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[1] Jon Swaine, “Hundreds of law professors sign letters rejecting Kavanaugh nomination,” The Guardian, U.S. Edition, Oct. 2, 2018. https://www.theguardian.com/us-news/2018/oct/02/brett-kavanaugh-reject-supreme-court-nomination-law-professor-letter.

[2] Steven Nelson, “Brett Kavanaugh’s defense of NAS phone surveillance looms as confirmation issue,” Washington Examiner, (July 9, 2018). https://www.washingtonexaminer.com/news-white-house/supreme-court-nominee-brett-kavanaughs-defense-nsa-phone-surveillance-confirmation-question.

[3] United States Court of Appeals, for the District of Columbia Circuit, No. 14-5004, Barack Hussein Obama, Et Al, Appellants, V. Larry Elliot Klayman, Et Al, Appellees. Decided August 28, 2015,pp. 2-3.

[4] Ibid. pp. 2-3.

[5] Eyder Peralta, “NSA Ends Sept. 11-Era Surveillance Program,” National Public Radio, Inc. [US], November 29, 2015. https://www.npr,org/sections/thetwo-way/2015/11/29/457779757/nsa-ends-sept-11th-era-surveillance-program.

[6] United States District Court for the District of Columbia, Klayman, et. al., Plaintiffs, v. Obama, et. al., Defendants, Civil Action No. 13-0851 (RJL). Memorandum Opinion, [Dkt. # 13 (No. 13-0851), # 10 (No. 13-0881)]. Filed December 16, 2013.

[7] United States Court of Appeals for the District of Columbia Circuit, September Term, 2015, Larry Elliott Klayman, et al., Appellees, v. Barack Obama, et al., Appellants, No. 15-5307, 1:13-cv-00851-RJL. Filed on November 16, 2015; and United States Court of Appeals for the District of Columbia Circuit, Larry Elliott Klayman, et. al., Appellees, v. Barack Obama, et al., Appellants,No. 15-5307, On Emergency Petition for Rehearing En Banc Review of this Circuit’s Order of November 16, 2015.

[8] Chris Strohm, “FBI, NSA, CIA Poised to Gain increased Surveillance Power Under Trump,” Bloomberg News, November 30, 2016. www.govtech.com/policy/FBI-NSA-CIA-Poised-to-Gain-increased-Surveillance-Power-Under-Trump.html.

[9] See The New York Times, “A Guide to Memos on Torture.” https:/archive.nytimes.com/www.nytimes.com/ref/international/24MEMO-GUIDE.html?.

[10] Jay S. Bybee, Memorandum for Alberto R. Gonzales, White House Counsel. Re: Standards of Conduct for Interrogation Under 18 USC §§2340-2340A, U. S. Department of Justice, Office of Legal Counsel, August 1, 2002,pp. 1-2.

[11] Amy Devidson Sorkin, “What Brett Kavanaugh Must Be Asked About Torture, Guantanamo, and Mass Surveillance” The New Yorker, July 24, 2018. https://newyorker.com/news/daily-comment/what-brett-kavanaugh-must-be-asked-about-torture-guantanamo-and-mass-surveillance.

[12] Michael Kranish, “Kavanaugh’s role in Bush-era detainee debate now an issue in his Supreme Court nomination,” The Washington Post, July, 2018. https://www.washngtonpost.com/politics/kavenaughs-role-in-bush-era-debate…

[13] Sorkin, The New Yorker, July 24, 2018.

[14] Charlie Savage, “Bush could bypass new torture ban: Waiver right is reserved,” The Boston Globe, January 4, 2006. Archive.boston.com/news/nation/articles/2005/01/04/bush­_could_bypass_new_torture_bn.

[15] Ibid.

[16] Committee on the Judiciary, United States Senate, Confirmation Hearing on the Nomination of Brett Kavanaugh to be Circuit Judge for the District of Columbia Circuit. One Hundred ninth Congress, second session, May 9, 2006. Senate Hearing 109-435, Serial No. J-109-73. https://www.congress.gov/109/chrg/shrg27916/CHRG-109shrg27926.htm.

[17] United States Court of Appeals for the District of Columbia Circuit, Ghaleb Nassar Al-Bihani, Appellant v. Barack Obama, President of the United States, et al., Appellees. Petition for rehearing en banc. No 09-5051, 619F. 3d 1 (2010) https://scholar.google.com/scholar_case?case=8745018070447430539&hl=en&as_sdt=6&asvis=1&oi=scholarr

[18] United States Court of Appeals for the District of Columbia Circuit, Abdul-Razzaq Ali, Detainee-Appellant  v. Barack Obama, President, et al., Appellees. December 3, 2013, No. 11-5012, pp. 2-7.

[19] United States Court of Appeals for the District of Columbia, Amir Meshal, appellant v. Chris Higgenbotham, FBI Supervising Agent in his Indiviual Capacity, et al., appellees.October 23, 2015, pp. 2-5.

[20] Ibid., Kavanaugh Opinion,pp. 2-4.

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About the Author

About the Author