Brett Kavanaugh

Brett Kavanaugh: A Judicial Lamb on National Security

By Robert Loeb
Wednesday, July 25, 2018, 8:30 AM

In considering Judge Brett Kavanaugh’s Supreme Court nomination, there are many important unknowns, including how he would treat court precedents regarding such hot topics as same-sex marriage and abortion. In regard to national security and foreign affairs, however, there is little such ambiguity. Kavanaugh has a long, established track record on such matters—generally viewing them as issues for Congress and the executive, not the judiciary, to decide. A recurring theme across numerous Kavanaugh opinions is that a court cannot freelance on such matters. Rather, a court’s proper role in national security and foreign affairs cases is restricted to enforcing the clear limits set by Congress or the U.S. Constitution.

For example, in a 2015 case about claims of FBI complicity in torture and abuse of a U.S. citizen (Meshal v. Higgenbotham), Judge Kavanaugh refused to recognize a right to sue over the alleged constitutional violations. In his concurring opinion, Kavanaugh explained that this decision was not about whether providing a right to sue for damages was a good idea or not; rather, in his view, it was about “who decides.” To Kavanaugh, there was one clear answer: Congress decides.

Ordinarily, there would be no question that a U.S. citizen could sue FBI officials regarding alleged abuses. What made this different was that the alleged abuse of a U.S. citizen occurred in Africa and that it occurred in connection to a terrorism investigation. Do those factors preclude the otherwise established right to sue? Even though there were few cases addressing this novel context, to Kavanagh there was no doubt. His opinion spoke in strident terms:

“In my view, we would disrespect Congress and the President, and disregard our proper role as judges, if we were to recognize a Bivens cause of action here.”

That theme—seeing judges as acting improperly if they address matters relating to national security or foreign affairs, absent clear license from Congress—is seen again and again in Kavanaugh’s rulings.

In the Guantanamo detainee case Razak Ali v. Obama, Kavanaugh addressed the question of whether, given that the detention may last for the lifetime of the detainee, the government should have a greater burden of proof. He explained that detention was not punishment and was not about guilt of a crime (“This is not a criminal proceeding in which the Government asks a court to find Ali guilty and punish him for past behavior by sentencing him to a defined term of imprisonment”). He recognized, however, that “military detention is not the same as the standard of proof for criminal prosecution, in part because of the different purposes of the proceedings and in part because military detention ends with the end of the war.” He further acknowledge that such a rationale for a lower standard may not make sense here, because, given the nature of the conflict, detention could be long term and possibly even for life. Kavanaugh expressed concern about that and even said that such concerns may support applying a different standard: “We are of course aware that this is a long war with no end in sight.”

But this is where Kavanaugh’s overarching ideology kicked in. In his view, such a change must come from Congress, not the courts: “Congress and the President may choose to make long-term military detention subject to different, higher standards. ... But 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.”

Of course, the standard applied in the Guantanamo detainee cases, a preponderance of the evidence, was devised in the first instance by the D.C. Circuit (drawing on a number of sources) and not dictated by Congress. But to Kavanaugh, it would be wholly improper for the court to modify that judicially created standard without Congress stepping in and directing it to do so.

Also notable, in a case about the transfer of detainees to other countries, Kavanaugh again showed obsequiousness to the political branches. There, the detainee sought 30 days notice of a transfer so that he could oppose a transfer to a country where he would be tortured or where he might be locked up again, by the receiving country, at the behest of the United States. Kavanaugh’s view was, absent being expressly granted a broader role by Congress, a court must defer to a declaration from the government saying it was not transferring the detainee to a place where he likely would be tortured. Likewise, a court must simply accept the government’s assurance that a country accepting the detainee will not jail the detainee at behest of the United States. Kavanaugh’s opinion summed this up: “It would be quite anomalous for courts, absent congressional direction, to second-guess such Executive assessments in these war-related transfer cases.” He concluded that there was “no basis in this case for the court to second-guess the Executive’s proposed transfer of these alien detainees.”

In an Alien Tort Statute case against ExxonMobil, Kavanaugh’s decision also said that claims had to be rejected based on the say-so of the executive branch. There, the State Department had filed a letter asserting that allowing the plaintiffs’ claims against ExxonMobil (relating to activities of the Indonesian army) to go forward could harm the U.S. relationship with Indonesia and could impair joint efforts against terrorism. As long as the government’s letter reasonably explained its position, Kavanaugh wrote, a court must defer.

Finally, and possibly most telling to Kavanaugh’s judicial ideology, was his 87-page opus on international law, filed in Bihani v. Obama. There, the question was whether statutory detention authority should be construed or limited in light of international law norms. Judge Janice Rogers Brown wrote a panel decision saying that international law was irrelevant. In response to a petition seeking review by the full court, a large majority of the D.C. Circuit said that there was no need to reach that issue because it was unnecessary to resolve the case—in other words, the petitioner’s detention as a member of al-Qaeda was consistent with international law norms.

Kavanaugh took that action by a majority of the court to explicate his views about the role of international law. There was an overarching theme in his lengthy dissertation: “a federal court lacks legitimate authority” to enforce international law, or even consider it, to limit a statute or to interfere with the powers of the executive. According to Kavanaugh, a court may only look to international law if expressly incorporated into a statute or if a treaty is self-executing.

Sometimes judicial nominees say that as judges they are just like an umpire calling balls and strikes and that they decide cases without any substantive, subjective role. That analogy has little application to Brett Kavanaugh’s approach to international law. His limited view of when a court can consider international law norms is somewhat in tension with the Charming Betsy doctrine, which holds that statutes should be read, if possible, not to conflict with established international law norms. The principle was first articulated in an 1804 case, Murray v. The Charming Betsy (6 U.S. (2 Cranch) 64). Kavanaugh wrote a thorough explanation of why that doctrine should be construed to have a very limited application and why reading it to restrict the executive’s war powers would be improper. (Much of it aligned with some of the views I strongly espoused as a Justice Department lawyer.) But the law in this area is grey at best, and little of what Kavanaugh says in his Bihani opinion could fairly be analogized to an umpire simply calling balls and strikes. Indeed, in his opinion he has to struggle mightily to distinguish Justice Sandra Day O’Connor’s use of international law in Hamdi.

The Bihani opinion exemplifies Judge Kavanaugh’s thoughtfulness and thoroughness as a judge. It and his other national security and foreign affairs rulings also plainly reveal that he has a definite ideology of deference to the political branches—one that he can be expected to apply if and when he is elevated to the Supreme Court.