老澳门开奖结果

A week before his confirmation hearing, the public record on Judge Brett Kavanaugh鈥檚 possible involvement in some of the Bush administration鈥檚 most abusive policies and programs is woefully incomplete.

Kavanaugh, President Trump鈥檚 nominee for the Supreme Court, served in the White House soon after 9/11 when the Bush administration launched many of its most infamous programs in the name of national security. Leading senators have said that, during his 2006 confirmation hearing for the D.C. Circuit Court of Appeals, Kavanaugh may have provided misleading or inaccurate information about his involvement in developing those policies. Senators have rightly called for access to and public release of all documents from his White House stint, so we know any role he might have played in developing or reviewing the Bush administration鈥檚 torture, detention, and surveillance programs.

But despite these holes, Kavanaugh does have a well-developed record in cases involving national security, civil liberties, and human rights from his time on the D.C. Circuit. That record shows extreme deference to presidential claims to act unchecked in the name of war or national security. It also demonstrates hostility to international law as a constraint on government action as well as an unwillingness to hold the government to account when it violates the constitutional and human rights of U.S. citizens and noncitizens.

READ MORE: 老澳门开奖结果 REPORT ON JUDGE BRETT M. KAVANAUGH

A clear example of this approach came in Meshal v. Higgenbotham, a case concerning Amir Meshal, a U.S. citizen who was secretly and unlawfully detained in 2007 by FBI agents in three African countries for four months. The agents threatened Meshal with torture, disappearance, and death unless he admitted terrorism connections 鈥� which he consistently denied. He was finally brought home to the United States and never charged with a crime. Represented by the 老澳门开奖结果, Meshal sued the FBI agents for violations of his Fourth and Fifth Amendment rights. He argued that he was entitled to sue his abusers under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, in which the Supreme Court held that citizens whose constitutional rights were violated are entitled to seek a legal remedy.

But in a divided opinion, the court of appeals to recognize that Meshal could sue the FBI agents, holding that Bivens did not apply to abuses by federal agents conducting a criminal counterterrorism investigation overseas. Kavanaugh agreed and wrote a separate opinion to emphasize a more extreme position. He argued that federal courts should not recognize a Bivens remedy for any conduct by U.S. officials overseas. He noted that permitting these claims might make officials 鈥渕ore hesitant in investigating and interrogating suspected al Qaeda members abroad. Some might argue that would be a good thing. Maybe so, maybe not.鈥� But in Kavanaugh鈥檚 view, unless Congress opens the courthouse doors in cases involving national security abuses abroad, the courts should not provide a U.S. citizen with a remedy.

Kavanaugh鈥檚 refusal to recognize that victims and survivors can turn to the courts when their fundamental rights have been violated is a common thread running through his national security decisions. Whether by carving out exceptions to judicial doctrines allowing victims their day in court, as in Meshal, or by interpreting national security abuse cases as raising 鈥減olitical questions,鈥� Kavanaugh has written or joined opinions that leave victims of U.S. policy without any remedy at all. Those victims include the U.S. citizen widow of a Guatemalan man, who sought to hold for conspiring to imprison, torture, and execute her husband. They also include Iraqi nationals seeking a remedy against U.S. military contractors who them at Abu Ghraib prison.

Kavanaugh has also made clear his belief that that the president has inherent authority to hold prisoners in wartime without congressional authorization and without the need to abide by international law. In a case called Al-Bihani v. Obama, which concerned a Guant谩namo detainee, Kavanaugh wrote separately to argue that the president鈥檚 war powers allowed him to hold prisoners 鈥� or at least noncitizen prisoners 鈥� without authorization by Congress. Kavanaugh鈥檚 approach would give the president exceedingly broad and dangerous powers.

In that case, , Kavanaugh has repeatedly asserted that courts should ignore binding international treaties in interpreting laws, at least when the treaties constrain the president鈥檚 war powers. That extreme view is contrary to the judicial mainstream and to Supreme Court precedent, which instructs courts to interpret domestic statutes consistently with international law unless Congress clearly states otherwise. Other judges on the D.C. Circuit have these aspects of Kavanaugh鈥檚 opinions.

Kavanaugh has also joined or written numerous D.C. Circuit opinions that turned judicial review of Guant谩namo detention into a virtual rubber stamp of the executive branch鈥檚 claims. As a result, the D.C. Circuit now applies a more deferential to the government鈥檚 arguments and requires the government to put forward only when it seeks to justify the of prisoners at Guant谩namo鈥� a far lower standard than in other cases involving the deprivation of liberty.

Moreover, in Kavanaugh鈥檚 view, the government may use the Guant谩namo military commissions to prosecute purely domestic terrorism-related crimes, significantly expanding the role of the controversial commissions beyond what courts historically have permitted. Kavanaugh expressed his view in al-Bahlul v. United States, a controversial case involving conspiracy, which is not a war crime under international law and which therefore should be prosecuted only in federal criminal courts. As other judges on the D.C. Circuit pointed out, the logic of Kavanaugh鈥檚 view is that the United States could take 鈥渢hree U.S. citizens [who] sent $200 to the humanitarian wing of an organization that the United States designated a foreign terrorist organization, earmarked for training in human-rights advocacy that the donors hope will turn the organization away from terrorist activities鈥� and 鈥渟hip [them] off to a military base鈥� to be tried by military commission.

Finally, Kavanaugh has the mass surveillance of Americans鈥� phone records. The case arose after Edward Snowden鈥檚 disclosures in 2013, when the public learned that the NSA was collecting the call records of millions of Americans in bulk under Section 215 of the USA Patriot Act. In an appeal in the case, Kavanaugh asserted that the Fourth Amendment did not bar the program because it involved the collection of phone numbers, not the content of the calls made. Kavanaugh relied on an inapt case from the 1970s, which held that the government did not need a warrant to collect a particular criminal suspect鈥檚 phone records, over a few days, from a telephone company. But, from a privacy perspective, the continuous bulk collection of millions of Americans鈥� phone records is an entirely different issue. Kavanaugh also argued that even if the Fourth Amendment applied, the national security interest the government claimed outweighed the impact on Americans鈥� privacy.

No other judge on the D.C. Circuit joined Kavanaugh鈥檚 analysis.

If confirmed, Kavanaugh would replace Justice Anthony Kennedy, who at key points in the post-9/11 era helped preserve the role of courts as a check on unlawful executive action. In a , Kennedy wrote to uphold Guant谩namo detainees鈥� right to habeas corpus review, reasoning that it is a safeguard of liberty required by the Constitution. For Kennedy, 鈥淟iberty and security can be reconciled; and in our system they are reconciled within the framework of the law.鈥�

In contrast, Kavanaugh鈥檚 record shows he would likely defer to 鈥� and not even scrutinize 鈥� a president鈥檚 security-based claims, even at the expense of individual liberty and access to justice.