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.”
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.
I wrote the above 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.