Brett Kavanaugh, Trump’s Supreme Court Nomination, Has a Dangerous Track Record of Defending Guantánamo and Unfettered Executive Power

12.7.18

Judge Brett Kavanaugh, Donald Trump and a close-up of Guantanamo prisoners photographed on the day the prison opened, January 11, 2002. The photo on the left is an edit of a photo by Mandel Ngan/AFP/Getty Images.Please support my work as a reader-funded journalist! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the next three months of the Trump administration.

 

I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

Disgraceful though Donald Trump’s presidency is, it will at least be over at some point in the imaginable future, with the potential that his most outrageous policy changes, enacted in legislation by a Republican majority in Congress, can be reversed should Congress end up with a Democratic majority instead.

When it comes to interpreting the law, however, his impact will last for decades, through his nominations to the nation’s District Courts, appeals courts (the Circuit Courts), and, most crucially, the Supreme Court.

Shamefully, although Barack Obama successfully nominated two of the Supreme Court’s nine justices during his eight years in office (Sonia Sotomayor and Elena Kagan), Congress — where Republicans had a majority, as they did throughout most of Obama’s presidency — refused to consider his third nomination, Merrick Garland, nominated in March 2016. Garland’s appointment would have given Democratic appointees a majority on the Supreme Court for the first time since 1970, but Garland’s nomination expired in January 2017, when Obama left office, and when Donald Trump took over he wasted no time in nominating Neil Gorsuch instead, a dangerous right-winger whose nomination was subsequently approved by the Republican-controlled Congress.

That a perfectly valid nominee can simply be ignored by Congress for ten months reveals something rotten at the heart of America’s supposedly democratic system, especially when, as it later transpired, Senate majority leader Mitch McConnell bragged about how, as he put it, “one of my proudest moments” was when I told Obama “you will not fill this Supreme Court vacancy.”

Gorsuch replaced Antonin Scalia, one of the court’s more conservative members, appointed by Ronald Reagan, and the latest vacancy has arisen because Justice Anthony Kennedy, another Reagan appointee, announced on June 27 that he would be retiring at the end of July. Three days ago, after weeks of speculation, Trump announced that his nomination to replace Kennedy is Brett Kavanaugh.

From the same background as Neil Gorsuch (in fact, they both went to the same Washington, D.C.-area school), Kavanaugh, like Gorsuch, is also what is termed an “originalist,” a position held most notably by Antonin Scalia, which, as Jill Abramson explained for the Guardian, involves “conservative legal thinkers who believe in a strict, textual interpretation of the constitution,” and who “believe in adhering to the intent of framers of the constitution, white men whose outlook reflected 18th-century realities and whose thinking the originalists believe they have a unique ability to divine.”

As Abramson also explained, “[S]cholars … have shredded the originalist approach, showing how so-called strict construction of the constitution can be used to justify horrifying, retrograde acts like banning contraceptives, discrimination against women and blacks and to nullify environmental protections.” She added, “Originalism animates Kavanaugh’s legal career and infuses his 300 legal opinions. It isn’t conservative or principled, as Kavanaugh’s champions argue. It’s radical and retrograde.”

As Abramson also pointed out, “originalists are especially untrustworthy when it comes to women’s rights, since the framers were noticeably silent in granting distaff power,” and what is particularly worrying about Kavanaugh’s nomination — and what it will do to the balance of power in the court — is his position on Roe v Wade, the landmark 1973 case supporting women’s right to abortions, which, as Abramson notes, “is anathema to most originalists.”

Brett Kavanaugh’s troubling record on Guantánamo and executive power

And so to Kavanaugh’s record on national security and executive power — and Guantánamo. Jill Abramson noted that “more needs to be known about where he stood on former president George W Bush’s radical, post-9/11 restrictions on civil liberties, the cornerstone of the constitution,” also asking, pertinently, “How did this young originalist justify overzealous policies like torture and rendition when he was Bush’s staff secretary?” (which he was from June 2003 to May 2006, when he was appointed to the D.C. Circuit Court).

Unfortunately, although most people outside the legal world are unaware of Kavanaugh’s role in the D.C. Circuit Court, those of us who have been studying Guantánamo closely know exactly who he is — and regard him, along with Judge Janice Rogers Brown, Judge Laurence Silberman and Judge A. Raymond Randolph as dangerous ideologues, who gutted habeas corpus of all meaning for the Guantánamo prisoners, effectively nullifying the Supreme Court’s memorable and hugely significant decision, in June 2008’s Boumediene v. Bush, that the Guantánamo prisoners had constitutionally guaranteed habeas corpus rights.

From that date until July 2010, 38 prisoners had their habeas corpus petitions granted by District Court judges, on the basis that the government had failed to establish, by a preponderance of the evidence, that the men in question were involved in any meaningful sense — or, often, at all — with either al-Qaeda or the Taliban.

In response, however, the Circuit Court — and, specifically, the judges mentioned above — issued a number of opinions, between January 2010 and November 2011 that reversed or vacated six of those rulings, and, most crucially, meant that, from July 2010 onwards, no prisoner has had their habeas corpus petition granted.

The final nail in the habeas coffin was the November 2011 ruling, in the case of Adnan Farhan Abdul Latif, who later died, reportedly by committing suicide, that every piece of information provided by the government — however risible — had to be regarded as presumptively accurate. This was a comprehensively absurd situation, especially as it took place in the year that WikiLeaks released the classified military files about the Guantánamo prisoners that revealed, unambiguously, the extent to which the so-called evidence against prisoners actually consisted of allegations made by other prisoners, many of whom were profoundly unreliable.

Judge Kavanaugh, for his part, played a significant role in the very first ruling that began the curtailment of the Guantánamo prisoners’ habeas rights, which I wrote about in an article at the time, entitled, Appeals Court Extends President’s Wartime Powers, Limits Guantánamo Prisoners’ Rights.

The case concerned Ghaleb al-Bihani, a chef for Arab forces supporting the Taliban, who had had his habeas petition refused, and had then appealed, and as I explained in my article:

In the majority opinion, Judge Janice Rogers Brown, supported by Judge Brett M. Kavanaugh (who are two of the most conservative judges on the Circuit Court) discussed the international laws of war and how they reflected on the President’s ability to hold prisoners under the AUMF, which authorized the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States,” and which, as interpreted by the Supreme Court in Hamdi v. Rumsfeld, in 2004, involved the assertion that “Congress has clearly and unmistakably authorized detention” of individuals covered by the AUMF.

In a key passage, Judge Brown dismissed claims made by al-Bihani regarding his detention, not merely because his arguments, based on various interpretations of international law, failed to detract from his relationship with the fighting forces and the ongoing nature of the conflict in Afghanistan, but also because they “rel[ied] heavily on the premise that the war powers granted by the AUMF and other statutes are limited by the international laws of war. This premise is mistaken.” Judge Brown also described the international laws of war as not “a fixed code,” refused to “quibble over the intricate application of vague treaty provisions and amorphous customary principles,” and concluded that “their lack of controlling legal force and firm definition render their use both inapposite and inadvisable when courts seek to determine the limits of the President’s war powers.”

Al-Bihani then appealed again, in an effort to secure an en banc hearing, in which all nine judges issue a ruling, rather than just three of them. This was turned down in September 2010, because the judges didn’t dispute the fundamental basis on which al-Bihani’s ongoing imprisonment was approved. However, seven of the nine judges — including Merrick Garland — issued a statement that, as Steve Vladeck, Professor of Law at American University Washington College of Law, told the New York Times, “amounted to a nullification of the more sweeping parts of the January ruling without the court bothering to rehear it.” He added, as the Times described it, that the paragraph “tells the world that the section of the January ruling about international law should be treated like what lawyers call ‘dicta’ — editorializing about issues that are not necessary to decide the matter at hand, which has little controlling authority for other cases.” As Vladeck added, “They’ve basically removed the single biggest complaint people had with that opinion. They said, ‘We don’t think we need to rehear the whole case just to limit the opinion — we can just say it, and going forward this is how we understand it.’ That matters a lot.”

As I explained at the time:

Confirmation of Vladeck’s opinion can be found in the responses of Judge Brown and Kavanaugh. In a desperate attempt to salvage their defense of sweeping war powers, unrestrained by the international laws of war, Judge Brown issued a 15-page opinion, attacking her colleagues for “appending ‘a cryptic statement’ that she said would ‘muddy the clear holding’ that international law does not limit the war powers Congress authorized,” and Judge Kavanaugh issued an 87-page opinion, arguing that “only rules explicitly enacted by Congress, not international laws of armed conflict, can constrain what an American president can do in wartime,” and stating, “International law is not a judicially enforceable limit on a president’s wartime authority unless Congress expressly says it is” (emphasis in original).

Kavanaugh also “aggressively defended Congress’ right to assert what constitutes war crimes,” as the Huffington Post described it, in an en banc review in 2016 of the case of Ali al-Bahlul, who, in 2008, had been convicted of war crimes invented by Congress, which included providing material support for terrorism, and conspiracy. The material support conviction had been thrown out in 2013, because it is a crime under domestic law, but not under the international laws of war, and al-Bahlul then appealed the conspiracy conviction. In a fractured decision, as the Huffington Post put it, “several judges who sided with the government avoided the question of whether Congress had the right to make conspiracy a triable offense in the military commissions,” but not Kavanaugh, who claimed, “The federal courts are not roving enforcers of international law. And the federal courts are not empowered to smuggle international law into the U.S. Constitution and then wield it as a club against Congress and the President in wartime.”

As far as we’re concerned, anyone who writes an 87-page opinion arguing, against his colleagues, that there should be no constraints on the president’s power, and who also defends Congress’s right to invent war crimes, should not be given the opportunity to spread his poisonous views as a member of the Supreme Court.

We hope that members of Congress agree.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose music is available via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and see the latest photo campaign here) and the successful We Stand With Shaker campaign of 2014-15, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (click on the following for Amazon in the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US), and for his photo project ‘The State of London’ he publishes a photo a day from six years of bike rides around the 120 postcodes of the capital.

In 2017, Andy became very involved in housing issues. He is the narrator of a new documentary film, ‘Concrete Soldiers UK’, about the destruction of council estates, and the inspiring resistance of residents, he wrote a song ‘Grenfell’, in the aftermath of the entirely preventable fire in June that killed over 70 people, and he also set up ‘No Social Cleansing in Lewisham’ as a focal point for resistance to estate destruction and the loss of community space in his home borough in south east London.

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, The Complete Guantánamo Files, the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the Close Guantánamo campaign, and, if you appreciate Andy’s work, feel free to make a donation.

27 Responses

  1. Andy Worthington says...

    When I posted this on Facebook, I wrote:

    Here’s my latest article, examining the disturbing track record of Brett Kavanaugh, Donald Trump’s nomination to replace Anthony Kennedy as one of the Supreme Court’s nine justices. Kavanaugh, predictably, is a dangerous right-wing ideologue, and on Guantanamo he is one of four particularly notorious appeals court judges who issued opinions in 2010-11 that ended up gutting habeas corpus of all meaning of the Guantanamo prisoners, whilst also seeking to lift any restrictions of presidential power. This was something he again argued for in an appeal involving Ali Hamza al-Bahlul, convicted in Guantanamo’s military commissions of crimes that were not internationally recognized, and were in fact invented by Congress.
    I very much hope that lawmakers take note of the decades-long significance of Supreme Court appointees, and that Kavanaugh will not end up being confirmed.

  2. Andy Worthington says...

    Natalya Wolf wrote:

    aarrghhhhhhh

  3. Andy Worthington says...

    Yes, exactly, Natalya. What a disgrace Trump is – and dangerous too, of course. The Supreme Court with a serious right-wing majority really would be a disaster.

  4. Andy Worthington says...

    Natalya Wolf wrote:

    I can’t even contain my outrage … incandescent
    he is a MONSTER

  5. Andy Worthington says...

    He is, but you know, Natalya, what really appalled me even more, as I reflected on this whole sad story, is that the Republicans were able to prevent Merrick Garland from being Obama’s third Supreme Court justice, as was his right, simply by refusing to do anything for the last ten months of his presidency. Under what sad excuse for a valid political system is that acceptable?

  6. PBC News & Comment: Standing Rock Leader Now in Prison Pipeline – Peter B. Collins says...

    […] is one of 4 judges on DC Circuit who have sealed the gates at Gitmo, reports Guantanamo expert Andy […]

  7. Andy Worthington says...

    After Amy Phillips shared this, I wrote:

    Thanks for sharing, Amy!

  8. Andy Worthington says...

    Amy Phillips wrote:

    my pleasure. thanks for your good work. these asshole conservatives just keep coming out of the woodworks, like they’ve been lurking around waiting for this awful moment when they can emerge triumphant. i live in shame and anguish as an American.

  9. Andy Worthington says...

    I certainly understand your shame and anguish, Amy, although I must note that fundamental decency seems to be under assault everywhere to varying degrees. Anyway, you have a few days’ break from Trump while he’s here in the UK, having what looks to be an awkward time. Unfortunately, he’s talking to the tabloids – Rupert Murdoch’s the Sun – and still spreading his poison: http://www.thejournal.ie/trump-sun-may-4124944-Jul2018/

  10. Andy Worthington says...

    Todd Pierce wrote:

    You provided the answer to your own question Andy, you wrote: “involving Ali Hamza al-Bahlul, convicted in Guantanamo’s military commissions of crimes that were not internationally recognized, and were in fact invented by Congress.
    I very much hope that lawmakers take note of the decades-long significance of Supreme Court appointees, and that Kavanaugh will not end up being confirmed.” Crimes invented by Congress, are crimes invented by the lawmakers, which Kavanagh ratified. He’s their darling!!!

  11. Andy Worthington says...

    Thanks for your observations, Todd!

  12. Andy Worthington says...

    Agastyan Daram wrote:

    Our country may die in the Supreme court.

  13. Andy Worthington says...

    Sadly, it’s looking that way, Agastyan. I actually lost all respect for the system when the Republicans decided to obstruct Obama’s nomination of Merrick Garland. That ought to have been illegal.

  14. Andy Worthington says...

    Agastyan Daram wrote:

    We are making bad choices over here. he will fight to defend one amendment while working to gut another. And Nobody will pay attention to it. It is a broken and divided county right now. No leadership at all.

  15. Andy Worthington says...

    And much of the same fracturing of the body politic is happening in the UK, Agastyan. We genuinely have no leadership. Our supposed leaders are narrow, self-seeking fools whose backwardness and unfitness for office is absolutely stunning.

  16. Andy Worthington says...

    Amy Phillips wrote, in response to 9, above:

    Andy i noticed there were protesters booing him. good on them!

  17. Andy Worthington says...

    Yes, I saw a lot of excellent placards on Twitter, Amy, and there were a lot of women and girls protesting, which was good to see. Today’s protest will be quite something, I think, although I desperately hope that people remember that, although Theresa May isn’t a male sexual predator like Trump, she is just as racist as him, and just as much of a dangerous right-wing, pro-business dinosaur.

  18. Andy Worthington says...

    Peter B. Collins wrote:

    Confirming that I’m seeing your posts, Andy. Quoted from & linked to your post today in the podcast. You are appreciated. Hope you and a million more hit the streets tomorrow!

  19. Andy Worthington says...

    Thanks, Peter. Yes, it’s going to be a big protest, I think, and very women-led, I hope, as it’s Trump’s disgusting history as a sexual predator that ought to be the most offensive aspect of his visit from a British perspective. For everything else, however, although his racism and his general right-wing backwardness are also colossally offensive, the target of our ire really ought to be closer to home – in 10 Downing Street, where Theresa May’s racist, xenophobic and Islamophobic policies implemented in her six years as home secretary continue to have a chilling resonance, and in Parliament, where Tory Brexiteers, and their cheerleaders in our right-wing media, are desperately seeking to turn us into an unregulated free market basket case of a failed state, a cheap whore for any foreign power to exploit as ruthlessly as it wishes, so long as they’re not in the EU. People really shouldn’t have much rage left over for a clown like Trump, however much he is mocking and eroding Amerca’s standing in the world, because the Brexit reality is so severe that it should be keeping people awake at night, but people just don’t get it.

  20. Andy Worthington says...

    Jan Strain wrote:

    The man is a walking horror show. He threatens everything for which I have fought for the last 50 years from Human and Civil Rights – He is a threat to Humanity.

  21. Andy Worthington says...

    Thanks, Jan. That’s very well put, sadly, but in the UK we’re just as threatened by the aggressive destructiveness of the resurgent right-wing. I have no time for their counterparts either – the so-called liberal parties (the Democrats, and the Blairite Labour Party) who also sold out to big business and have contempt for ordinary people – but the right-wing is even more spectacularly ideologically bankrupt, able only to look back to the worst of the past for inspiration, their jackboots stamping endlessly on the faces of anyone who isn’t part of their old white racist club.

  22. Andy Worthington says...

    Pamela R. Speck wrote:

    Someone maybe Robert Reich has a way to delay the vote…

  23. Andy Worthington says...

    Thanks, Pamela. So yes, Robert Reich has been writing about Kavanaugh’s nomination here: https://www.facebook.com/RBReich/photos/a.404595876219681.103599.142474049098533/2032421716770414/?type=3

  24. Andy Worthington says...

    And this is Indivisible’s page for how to resist. It involves getting all the Democrat lawmakers on board, plus a few Republicans: https://www.indivisible.org/resource/2-step-strategy-win-supreme-court-fight/

  25. Andy Worthington says...

    Some good photos here of the first wave of resistance to Trump in the UK: https://www.facebook.com/guy.smallman/posts/10155408176206968

  26. Andy Worthington says...

    Rick Triangle wrote:

    #StupidHitler has Crafted his own Version of #HispanicGuantanamo now in the States and it’s a #BillionDollarMachine that is exacting all types of Torture and Death upon Children, Women, Men and Babies. #OBombYa could have shut it down, should have shut it down, but chose to leave that Beast running. We should have bought those poor Men, Women, and Children all Million Dollar Homes right here and given them and their Families full Citizenship in Atonement and Goodwill. Instead we’re now seeing the same lack of Morality and Humanity in the actions of ICE Amplified. Now it’s Morphing into the Next Stage. It is #Ethnicide, what our Military has been doing to the Middle East for almost 2 Decades. It is versions of what the US has done with it’s #WarOnTerror now being done to Us, Our Families, and Our Friends. It is what the #ZioNazis do to Palestinians. If the World can stop this, it will take War. We are all quite f*cked at the moment, Worldwide. People just don’t know, and don’t want to know it, but it’s here.

  27. Andy Worthington says...

    Good to hear from you, Rick. Yes, I think we are at a point where a war has been declared by the west’s leaders – on their own people. We see it here in the UK in the right-wingers enthusiasm for Brexit, which provides them with an opportunity to turn the clock back several centuries, and we also see it in demolition of council estates (what you call projects) by Conservative and Labour councils, in which property developers make huge profits, poorer people are moved out of the area, and those who can afford generally unaffordable rents for the new properties move in. In many cases, however, the new properties are bought by foreign investors who leave them empty. In the US, of course, Trump is engaged in a racist civil war, and needs to meet massive concerted resistance.
    In the UK, it took the entirely preventable death of the 72 residents of Grenfell Tower, a tower block in west London last June (mostly BAME), to galvanise the community into solidarity and resistance, the like of which we’re not used to seeing, and ripples from that are mobilising others in resistance. I just hope we’ll see some sort of snowball effect.

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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