Jonathan Hafetz is a senior staff attorney in the Center for Democracy at the American Civil Liberties Union and a professor of law at Seton Hall Law School.
In his 12 years on the bench, Judge Brett Kavanaugh, President Donald Trump’s Supreme Court nominee, has accumulated an extensive record in cases implicating national security. In such cases, Kavanaugh has consistently articulated a broad view of executive power, a narrow conception of the judiciary’s role (at least absent express instruction by Congress), and skepticism toward the enforcement of individual rights under the Constitution. He has also evinced opposition to enforcing constraints on presidential war powers rooted in international law. If confirmed, Kavanaugh would likely move the Supreme Court to the right on issues such as wartime detention, government surveillance and civil remedies for government misconduct.
The Guantanamo detainee litigation provides the richest source for assessing Kavanaugh’s approach to national-security cases. Kavanaugh has served on multiple panels reviewing appeals both in Guantanamo detainee habeas and military-commission cases. The former challenge indefinite executive detention without charge based on a detainee’s alleged membership in or support for al Qaeda, the Taliban or an associated force; the latter challenge criminal prosecution by a military tribunal for alleged war crimes. In each, Kavanaugh has staked out positions that have broadly construed presidential war powers to detain or try terrorism suspects outside the regular federal criminal justice system and narrowly construed individuals’ constitutional rights, including the right to meaningfully challenge and confront the evidence against them.
In Al-Bihani v. Obama, a 2010 case, Kavanaugh wrote separately to explain that the president would have unilateral authority under the Constitution’s commander-in-chief clause to hold Guantanamo detainees indefinitely “without congressional authorization,” Relatedly, Kavanaugh took the position in Al-Bihani that federal courts can disregard international law-of-war rules unless they have been specifically incorporated into a statute or a treaty is self-executing. In a lengthy opinion concurring in the denial of rehearing en banc in Al-Bihani, Kavanaugh deemed “radical” the argument that the international law of war was relevant to the scope of the 2001 Authorization for Use of Military Force. With the exception of Judge Janice Rogers Brown, the other judges on the U.S. Court of Appeals for the District of Columbia Circuit concluded that Kavanaugh’s analysis was unnecessary to resolve Al-Bihani’s appeal.
Kavanaugh has also narrowly construed detainees’ habeas rights on procedural and evidentiary issues. In his 2013 panel opinion in Razak Ali v. Obama, Kavanaugh acknowledged that the rationale for a lower, noncriminal standard of evidence like preponderance might not make sense for military detention under the AUMF because, he said, the United States is engaged in “a long war with no end in sight.” But, he continued, “absent a statute that imposes a time limit or creates a sliding-scale standard that becomes more stringent over time, it is not the Judiciary’s proper role to devise a novel detention standard that varies with the length of detention.” Notably in Adahi v. Obama, Kavanaugh had previously joined a panel opinion endorsing just such a novel detention standard in the absence of a statute, when that standard served to constrict a prisoner’s rights. In that case, the panel suggested that the government need not satisfy even a preponderance-of-the-evidence standard to justify a prisoner’s indefinite detention, although the government itself conceded that a preponderance standard should govern.
Kavanaugh has repeatedly addressed the political branches’ authority to subject suspected terrorists to trial in military tribunals, with mixed results. In 2012, Kavanaugh authored the panel opinion in Hamdan v. United States, vacating Salim Hamdan’s military commission conviction under the 2006 Military Commissions Act for material support of terrorism. Kavanaugh explained that the statute in force in 2001, when Hamdan’s charged conduct was completed, expressly applied only to “violations of the law of war,” and therefore did not include material support of terrorism (because it was not a law-of-war violation). Interpreting the 2006 MCA against the backdrop of the ex post facto clause, Kavanaugh wrote that Congress’ authorization to use military commissions to try material support of terrorism and other offenses that did not violate the international law-of-war did not apply retroactively.
In 2016, Kavanaugh wrote the principal concurrence to the en banc court’s opinion in Al-Bahlul v. United States (Al-Bahlul II), which upheld the petitioner’s conviction for conspiracy. Like material support for terrorism, conspiracy is not a war crime under international law. But the en banc D.C. Circuit held in Al-Bahlul I that the petitioner had forfeited his ex post facto claim at trial. Thus, rather than reviewing that claim de novo, the court reviewed it under a more deferential “plain error” standard, and rejected it. In Al-Bahlul II, the court of appeals rejected the remainder of the petitioner’s constitutional challenges. In his concurring opinion, Kavanaugh remarked that the Constitution does not “impose international law as a limit on Congress’s authority to make offenses triable by military commission.” Kavanaugh thus interpreted Supreme Court war-crimes precedents, such as Ex parte Quirin, which upheld a commission’s authority to try actual war crimes, as rejecting any international-law-based constraint on Congress’ authority to assign criminal jurisdiction to military commissions rather than Article III courts.
When adjudicating the executive’s war powers, Kavanaugh has been reluctant to recognize constitutional or statutory claims by detainees. In particular, he has resisted any judicial scrutiny of the transfer of wartime detainees, even when those detainees allege a risk of torture and other abuse in a receiving country. In Kiyemba v. Obama, Kavanaugh joined the panel opinion rejecting the petitioners’ argument that they and their counsel receive 30-days’ advance notice of a proposed transfer from U.S. custody to enable them to challenge its legality. Concurring, Kavanaugh noted that the judiciary should not “second-guess” executive branch determinations regarding a noncitizen’s risk of torture in a receiving country. Subsequently, Kavanaugh held in Omar v. McHugh that Congress did not violate the suspension clause by stripping federal courts of jurisdiction under the Foreign Affairs Reform and Restructuring Act of 1998 over risk-of-torture claims by American citizens facing transfer by the U.S. military to foreign countries. Although neither Kiyemba nor Omar endorses torture, both assign the implementation of guarantees against torture to the executive and legislative branches rather than the judiciary.
Writing for the panel in 2008’s Harbury v. Hayden, Kavanaugh affirmed the dismissal of a suit brought by the U.S. citizen widow of a Guatemalan rebel fighter against individual CIA agents for conspiring to imprison, torture and execute her late husband. Extending circuit precedent, the panel held that Harbury’s state-law claims brought under the Federal Torts Claims Act presented a nonjusticiable political question. The next year, in Saleh v. Titan, a suit by victims against private contractors for abuses at Abu Ghraib in Iraq, Kavanaugh joined a panel opinion (over a dissent by Judge Merrick Garland) concluding that state-law claims against military contractors are pre-empted when contractors are integrated into combatant activities. The panel noted that ordinary principles such as “compensation of victims” and “punishment of tortfeasors” are inapplicable in wartime.
As with his views on habeas corpus, Kavanaugh’s position on civil remedies for government misconduct extends to U.S. citizens. Since its 1971 decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, the Supreme Court has recognized an individual right to sue federal law enforcement agents for damages for constitutional violations committed during a criminal investigation. In 2015’s Meshal v. Higgenbotham, Kavanaugh voted to deny a Bivens action to an American whom FBI agents had allegedly threatened with torture and death and unlawfully detained for four months through the use of foreign proxies. [Disclosure: The ACLU served as counsel for the plaintiff in Meshal, and I argued the appeal before the D.C. Circuit.] In a divided opinion, the D.C. Circuit panel held that a citizen has no constitutional remedy for Fourth and Fifth Amendment violations committed by federal agents when the abuses occur in a counterterrorism investigation overseas. In a concurrence, Kavanaugh cautioned that recognizing a damages remedy, even for U.S. citizens, could make federal officials “more hesitant in investigating and interrogating” suspected terrorists abroad.
Kavanaugh’s opinion in Meshal reflects his view that Congress alone should prescribe limits on executive national-security actions and remedies for rights violations, but his 2012 dissent in Rattigan v. Holder seems to go further. In Rattigan, a jury found that the FBI violated Title VII of the Civil Rights Act of 1964 by referring the plaintiff, a black FBI agent then employed in Saudi Arabia, for a security investigation in retaliation for the plaintiff’s filing an internal anti-discrimination complaint. The government asked the D.C. Circuit to extend Department of Navy v. Egan, in which the Supreme Court had generally held that decisions to grant or deny a security clearance to employees were nonjusticiable, to this context to bar the retaliation claim based on the FBI referral. But the D.C. Circuit rejected the government’s request. Dissenting, Kavanaugh read Egan broadly to preclude suit under Title VII for any conduct touching on the security-clearance process, even if the government agents’ decisions in reporting security concerns were deliberately motivated by racial bias or knowingly predicated on false information — bases explicitly prohibited by the statute.
Although Kavanaugh’s record on government surveillance is sparser than his record in other types of national-security cases, it suggests similar views about executive power and the judiciary’s role. In Klayman v. Obama, the district court enjoined the government’s bulk collection of the phone records of millions of American under Section 215 of the USA Patriot Act, following Edward Snowden’s June 2013 revelations about the bulk collection program. After the D.C. Circuit granted the government’s motion for a stay pending appeal, plaintiffs sought rehearing en banc. Kavanaugh concurred in the denial of rehearing, and wrote separately to state that mass collection of Americans’ call records is “entirely consistent with the Fourth Amendment” under two theories.
First, he wrote that the bulk-collection program did not constitute a search under the Fourth Amendment because it involved collection of the phone numbers called rather than the calls’ content. Kavanaugh relied exclusively on the Supreme Court’s 1979 decision in Smith v. Maryland, which involved the police’s use of a pen register to collect information from a single suspect. Invoking the “binding” nature of “precedent … on lower courts in our hierarchical system of absolute vertical stare decisis,” Kavanaugh did not address several of the plaintiffs’ arguments, including that Smith did not purport to reach the kind of vast bulk collection at issue in Klayman, or more recent precedents, such as Riley v. California, that indicated a more expansive conception of privacy in a digital age. In June 2018, the Supreme Court in Carpenter v. United States abandoned the rigid version of the “third-party doctrine” that Kavanaugh and other judges had understood Smith to compel. Second, Kavanaugh noted that even if the program triggered Fourth Amendment protection, it should be upheld because the “critical national security need outweighs the impact on privacy occasioned by th[e] program.”
Kavanaugh’s approach to constitutional interpretation has in some quarters been described as “originalist.” But an originalist approach — even one with a plainly conservative bent — does not necessarily require judges to defer to the executive in national-security cases. In Hamdi, for example, Justice Antonin Scalia issued a forceful dissent concluding, based on an original understanding of the Constitution’s text and history, that U.S. citizens cannot be detained as enemy combatants unless Congress suspends habeas corpus. However, nothing in Kavanaugh’s prior opinions suggests that he would take a similar view. And given that a Justice Kavanaugh would replace Justice Anthony Kennedy — the swing vote in several key national security cases (such as Boumediene v. Bush, in which the Supreme Court held that Guantanamo detainees have a constitutional right to habeas corpus) — his impact in this area of the law could bring significant change when such cases reach the court.