Kavanaugh and the question of torture

[This is a guest post by Jamie Mayerfeld, my colleague in the Department of Political Science at the University of Washington and author of The Promise of Human Rights]

While the public is understandably riveted by the accusation that Brett Kavanaugh committed sexual assault in his high school years, we already have sufficient reasons to reject his nomination to the Supreme Court.  One of these reasons relates to the question of torture.

The George W. Bush administration instituted a policy of torture, armed with a “golden shield” of novel and spurious arguments crafted in secret by the government’s top lawyers.  The torture policy was a moral and strategic catastrophe, and represented a devastating failure of our legal and constitutional system.

The work needed to repair the damage has not yet begun. There has been no accountability for the authors of the policy, and the courts have exercised half-hearted and ambiguous restraint at best.  Whoever replaces Justice Kennedy may cast the deciding vote in determining whether government officials can commit torture with impunity.

Raising the stakes is President Donald Trump’s well-known support for torture.  He once stated that he would “bring back waterboarding and … a hell of a lot worse than waterboarding.”  He appointed a CIA director who presided over the harrowing torture of Abd al-Rahim al-Nashiri in Thailand.  His national security advisor, John Bolton, recently delivered an angry denunciation of the International Criminal Court, citing as a main provocation the possibility that the Court may open an investigation into torture committed by U.S. officials in Afghanistan, Poland, Romania, and Lithuania.

There are unanswered questions about Kavanaugh’s involvement in torture when serving as a White House lawyer between 2001 and 2006, while his opinions as a judge on the DC Circuit Court of Appeals from 2006 to the present undermine fundamental protections of the right not to be tortured.

Kavanaugh’s appointment to the Bush administration, as associate White House counsel and subsequently White House staff secretary, was the reward for a history of staunch conservatism and combative Republican partisanship.  Kavanaugh shared an ideological affinity with the authors of the torture memos, and we need to know whether he lent them encouragement and assistance.  Unfortunately, the Trump administration has blocked access to the records needed to answer this question.

Nobody who helped engineer torture should be given a seat on the Supreme Court (or any other court).  In the words of Yale law professor Bruce Ackerman, “It is no small matter to put a war criminal onto the Supreme Court – if the papers show that Kavanaugh did, in fact, endorse John Yoo’s notorious ‘torture memos’ in his dealings with the president.”  In the words of the New York Times editorial page, the documents

could contain important information about [Kavanaugh’s] role in some of the Bush administration’s most controversial actions, including its warrantless wiretapping program and its torture policy. Judge Kavanaugh was evasive during his 2006 confirmation hearing for a seat on the federal appeals court in Washington, D.C., where he currently sits. He denied any involvement in those policies, but Democratic senators have long believed that his answers to them were, at best, misleading. And at least one former Bush official appeared to directly contradict him. So what was his true role? The documents may or may not answer that question definitively, but we’ll never know without seeing them.

Suspicion is raised by some recently leaked documents from among those that the Trump administration had ordered to be hidden.  Email correspondence shows that in late 2001 and early 2002 Kavanaugh tried to secure a judicial appointment for John Yoo, in one case praising him as his “magic bullet.”  As far as we know, Kavanaugh’s lobbying efforts predate the August 2002 memo that narrowly defines torture in terms of “organ failure,” but they are contemporaneous with earlier memos that sought to clear a path for torture by declaring the inapplicability of the Geneva Conventions and customary international law in the so-called “war on terror.”

Did Kavanaugh know about the early torture memos and nonetheless seek a judicial appointment for their principal author?  Reasons to suspect that he did include the fact that his boss, White House counsel Alberto Gonzales, was part of the self-designated “War Council” that plotted a legal rationalization for the torture program and that Kavanaugh corresponded directly with Yoo about proposals to authorize widespread warrantless surveillance.

Gonzales says he doesn’t recall conversations with Kavanaugh about “torture or anything related to the war on terror.”  In written and spoken testimony for his Supreme Court nomination, Kavanaugh has repeatedly stated that he was not “read into” the interrogation program and “was not involved in crafting” the torture memos.  This formulation leaves open the possibility that he still knew about them, though in answer to a written question from Senator Feinstein, he stated that he became aware of the enhanced interrogation techniques (torture in all but name) and the torture memos “when they were publicly disclosed in news reports in 2004.”

However, Kavanaugh has a pattern of misleading testimony regarding his past conduct, including whether he was involved in shaping the Bush administration’s detainee policy.  Kavanaugh’s prevarications only underscore the need to review the documentary record.

(In a newly disclosed email from 2006, Kavanaugh showers praise on Steven Bradbury, who in 2005 had written a series of secret memos authorizing waterboarding and other methods of torture.)

Kavanaugh’s public record since leaving the White House is disqualifying in itself.  During the recent confirmation hearings, he declined an opportunity to state that enhanced interrogation techniques violated the law.  (To my knowledge, he has never condemned them.)  As an appellate judge on the DC Circuit, he joined a 2009 opinion that introduced a novel concept of “battlefield preemption” to block a lawsuit by former Iraqi prisoners who had been tortured in Abu Ghraib.  In a lengthy 2010 minority opinion, he advanced a radical argument that would sharply narrow the authority of international law over U.S. law and policy.  As I have discussed elsewhere, John Yoo used a similar argument to help create a legal rationalization for the U.S. torture program.  Kavanaugh’s opinions have been almost uniformly hostile to human rights claims brought by Guantanamo detainees.

A 2015 case raises further alarms.  Amir Meshal is a U.S. citizen who claims he was subjected to torture and threatened with disappearance and death by U.S. FBI agents abroad.  Kavanaugh voted to dismiss Meshal’s lawsuit, asserting that U.S. citizens do not have a right to sue U.S. officials for overseas conduct.  One of his arguments was that permitting such lawsuits might make U.S. officials “more hesitant in investigating and interrogating suspected al Qaeda members abroad.”  This argument could be read as a suggestion that U.S. officials should not shut the door on torture as a method of interrogation.  At best, it displays a relaxed attitude towards the torture that may ensue when U.S. interrogators know they are immune from civil suit.

Kavanaugh holds legal views that undermine safeguards against torture, and there is evidence that he may have permissive views about the use of torture.  We have not been given the information needed to determine whether he contributed to the U.S. torture program or knowingly sought to reward those who did.  These are sufficient reasons to oppose his nomination.  The issue has not received nearly enough attention.