Op-Ed by Carey Wedler
As expected, the corporate media’s coverage of Brett Kavanaugh’s appointment process is disappointingly superficial. While there’s no doubt sexual harassment is a pressing issue in modern-day America, left-leaning establishment outlets and individuals alike are mired in these accusations, as well as partisan political divides as they fail to recognize Kavanaugh’s very troublesome record of court rulings—rulings that show his verifiable proclivity toward using the government to very literally harass the American people and the rest of the world.
While Congress and the people bicker over their disagreements with Kavanaugh as he testifies, few are discussing what he has in common with both factions of the American ruling class.
The ACLU compiled a report in August detailing his many troublesome perspectives, highlighting his past decisions on surveillance, free speech, presidential and congressional war powers, and as a result, the overarching iron fist of government power that few care to challenge, choosing instead to fight for control of the institution at large.
As the ACLU summarized in its “Report of the American Civil Liberties Union on the Nomination of Judge Brett M. Kavanaugh To Be Associate Justice of the United States Supreme Court”:
[Kavanaugh’s] record shows his extreme deference to presidential war power and national security claims, an unwillingness to enforce international law absent express incorporation by the political branches, and a tendency to find obstacles to holding government officials accountable for constitutional and human rights abuses in national security cases.
One of the greatest constitutional violations since 9/11 has been the U.S. government’s denial of fair trials and redress over government violations of rights within the justice system. Kavanaugh has encouraged these encroachments. In the 2015 case Meshal v. Higgenbotham, Kavanaugh moved to deny “a remedy to an American citizen detained and abused by FBI agents overseas,” siding with security over freedom, claiming that giving the American citizen in question his constitutional rights might undermine efforts to fight terrorism.
In a 2009 case, Saleh v. Titan, he asserted military contractors cannot be held liable to human rights abuses as long as they are acting under the authority of the U.S. military. There is ample evidence of these abuses, but Kavanaugh does not believe in holding government affiliates accountable. Similarly, in the same ruling, he asserted that “government contractors [are] immune from torture claims brought under the [Alien Tort Statute] when the contractors operate under the control of the U.S. military.” The military’s violent authority trumps all.
In 2008, he sided with the executive branch on war powers. Kavanaugh wrote in the ruling for Harbury v. Hayden that “courts cannot review allegations of executive branch wrongdoing if the claims challenge national security or foreign affairs decisions.”
In still another case, El-Shifa Pharmaceutical Industries Co. v. United States (2010), he showed his “inclination to dismiss cases alleging government misconduct where national security or foreign affairs are at issue.”
He has also opined that the U.S. government’s war powers are free from the constraints of international law and that international treaties can be ignored if U.S. courts “construe statutes, at least when related to war powers.” Further, he has asserted that while the U.S. should technically respect international law, the courts have no power to make the government comply with it. That decision should be left to the president and Congress (most of us know how they’ve handled their war powers).
Regarding “continued detention” pursuant to the 2001 Authorization for Use of Military Force, Kavanaugh went so far as to acknowledge in 2013’s Ali v. Obama that “this is a long war with no end in sight,” but still decided “it is not the Judiciary’s proper role to devise a novel detention standard that varies with the length of detention.”
Kavanaugh prompted another judge to claim the current Supreme Court nominee had stretched the meaning of the AUMF so far that some habeas corpus rulings were “functionally useless.” Similarly, as the ACLU observed, Kavanaugh has “joined or written numerous D.C. Circuit opinions that have turned judicial habeas review of Guantánamo detention into a virtual rubber stamp.”
His record on free speech is less atrocious than his reverence for authoritarian war powers, protecting government corruption and violence, and denying justice to citizens and non-citizens alike. Nonetheless, he has been known to side with suppressing speech on some occasions. As the ACLU report explains:
His jurisprudence suggests that, where the precedent is clear, he faithfully applies the law. Where the case law offers ambiguity, however, he has shown a willingness to restrict speech rights.
With regard to government spying, in Klayman v. Obama in 2015, he disturbingly said the “suspicionless mass collection of Americans’ call records is ‘entirely consistent with the Fourth Amendment.’” Further, he said: “The Government’s collection of telephony metadata from a third party such as a telecommunications service provider is not considered a search under the Fourth Amendment”—and that even if bulk collection did constitute a search, such searches are totally reasonable.
He is also supportive of America’s growing police state. In the 2007 ruling United States v. Askew, he sided in favor of police stop-and-frisk tactics, another violation of the 4th amendment. In another broad show of support of police powers, he endorses qualified immunity, which is used to exempt “government officials from liability for constitutional rights violations where their actions are not clearly unconstitutional.” This concept has been used by the Supreme Court to let a police officer who shot a woman in her own yard off the hook, setting further precedents to prevent police accountability. Though he opposes “absolute immunity,” his support for a concept that already limits government responsibility is troublesome on its own – and is consistent with rulings regarding the government’s war powers.
The national conversation about Kavanaugh is obsessively focused on sexual harassment allegations and his views on traditional partisan divides like women’s rights and healthcare. While these are not unimportant issues, it is painfully telling that few are concerned about the exact same issues both the left and right agree upon that amount to verifiable harassment — by the government against the American people and victims of his war machine.
Will Congress be questioning Kavanaugh on mass surveillance? Doubtful, considering they continue to pass legislation to enable it. Will they question him about his endorsement of unrestrained executive and legislative war powers? Again, doubtful given their unrelenting warmongering and commitment to spending taxpayer dollars on their crumbling empire. As Congress continues to violate the people’s rights while feigning concern for their well-being—and as the media routinely fails to inform the public of these incremental erosion of their freedoms and liberties, it’s no surprise the country at large remains unconcerned about Kavanaugh’s authoritarian record on war powers and surveillance or his dubious commitment to free speech and holding domestic law enforcement accountable.