How Brett Kavanaugh Worked to Weaponize the War on Terror

He once claimed a new ‘special need’ to stop terror could give the government carte blanche to spy on Americans. He cited no legal authority, just the 9/11 Commission Report.

August 20, 2018

Cross-posted from The Daily Beast

According to newly public documents, Trump’s pick for the Supreme Court, Brett Kavanaugh, was involved in strategizing about how to present the Bush administration’s treatment of prisoners at Guantanamo. The documents are an important reminder that Kavanaugh served close to a president at a time when our most fundamental values were routinely discarded in the name of national security.

The tendency to overestimate national security claims runs through some of Kavanaugh’s decisions as a judge, supporting his expansive vision of executive power. Senators charged with vetting Kavanaugh would do well to plumb his views on the topic, particularly since this administration has made a habit of proffering weak security rationales for its policies on everything from tariffs and trade to separating children from their parents at the border.

Kavanaugh’s stance on the NSA’s warrantless program to collect information about Americans’ communications, for example, shows the extent to which he is willing to sacrifice individual liberties in the name of broad notions of security. One appellate court found that the program was likely illegal and Congress eventually reformed it. The appellate court on which Kavanaugh sits punted the constitutionality of the program in a brief, one-sentence opinion, but he chose to also write separately to suggest that there was a broad loophole to the warrant requirement of the Fourth Amendment for the “special needs” of national security.

The Fourth Amendment protects us from the government barging into our personal affairs unless it has convinced a judge that it has cause to do so, evidenced by a warrant. The Supreme Court has recognized a limited “special needs” exception to this requirement in a handful of circumstances, where the public interest outweighs minimal privacy invasions and requiring a warrant would be impractical. Inspecting homes and businesses for fire hazards is the classic example.

The “special need” Kavanaugh identified, however, swept far more broadly than the types of situations envisioned by the Court. According to Kavanaugh, once the government claims that it is acting with the purpose of “preventing terrorist attacks on the United States,” the constitutional requirement of a warrant can fall away. Such an expansion of a limited doctrine would give the government carte blanche to spy on Americans as long as it could be packaged as a way to prevent terrorism. Kavanaugh cited no legal authority for his position, instead inserting a single reference to the entire 9/11 Commission Report, as if to say “remember that day, guys?” In fact, the Commission’s report said nothing about the need for collecting metadata to ward off terrorist attacks, and it lays the failure to prevent the attacks at the feet of governmental dysfunction, including lack of coordination between the FBI and CIA.

Kavanaugh also accepted national security as a get-out-of-jail-free card to shield FBI agents accused of torturing an American citizen in Kenya, Somalia, and Ethiopia. While Kavanaugh was joined by one of his colleagues in ruling that the agents could not be sued for their overseas conduct, he also wrote separately to highlight the 9/11 attacks and the intentions of Al Qaeda as context for the FBI agents’ actions. For Kavanaugh, the fact that the alleged torture took place as part of “a national security investigation,” and that the “war on terror” had led to a melding of military operations and law enforcement weighed against holding the FBI accountable for violations of Americans’ rights. Indeed, he seemed troubled that an American’s individual rights would be weighed in deciding what tactics to use at all, writing: “Make no mistake. If we were to recognize a [remedy] in this case, U.S. officials undoubtedly would be more hesitant in investigating and interrogating suspected al Qaeda members abroad.”

Of course, Kavanaugh is not alone. American courts have a long history of caving to the executive’s broad claims of national security, sacrificing constitutional values and individual liberties along the way. Indeed, in times of perceived security crises, judges have routinely abrogated Americans’ liberties and only realized—and regretted―these mistakes once the crisis ended.

The “war on terror,” however, has no end in sight, and our judges must be “capable of sustaining the supremacy of civil liberties over exaggerated claims of national security.” Senators need to make sure that Kavanaugh is such a judge.  

(Image: Mandel Ngam/AFP/Getty)