U.S. Supreme Court

Judge Brett Kavanaugh on National Security: A Reader’s Guide

By Scott R. Anderson, Hayley Evans, Hilary Hurd
Thursday, August 30, 2018, 3:13 PM

The Senate Judiciary Committee is scheduled to begin hearings Sept. 4 on the nomination of Judge Brett Kavanaugh to the U.S. Supreme Court. If confirmed, Kavanaugh would replace the high court’s most frequent swing vote, retiring Justice Anthony Kennedy, a change that many expect would shift the court significantly to the right.

Most commentary on Kavanaugh’s nomination has focused on what this shift may entail for a variety of domestic policies and social issues that are likely to come before the court, such as abortion and the scope of the administrative state. Yet Kennedy’s swing vote also gave him an oversized role in crafting the Supreme Court’s approach to other issues—including those in the realm of foreign relations and national security law, which are likely to be of particular interest to Lawfare readers. As a result, Kavanaugh’s confirmation could shift the balance of the court on those matters as well.

The best way to understand where the Supreme Court may be headed is to read Kavanaugh’s past writings. But this is more easily said than done. Unlike other candidates reportedly considered by President Trump, Kavanaugh has an extended bibliography going back nearly three decades. It includes not only the 300 or so judicial opinions that he has authored as an appellate judge on the U.S. Court of Appeals for the D.C. Circuit but also about a dozen law review articles, countless speeches, a number of op-eds and one recently co-authored book. And this does not include the thousands of pages of legal memoranda and related correspondence that Kavanaugh wrote while working for Independent Counsel Kenneth Starr and, later, in the George W. Bush administration, much of which has yet to be released.

To aid Lawfare readers in navigating this thicket, we canvassed Kavanaugh’s published writings and public comments to identify those that address foreign relations, national security and related issues. We’ve sorted the significant ones by topic below and attempted to present them in rough order of importance. Throughout, we have provided annotations that summarize each piece’s contents and help to explain why they are notable.

This list builds upon other Lawfare coverage of Kavanaugh’s views on these issues, including commentary by Robert Loeb and Peter Margulies as well as a recent discussion on the Lawfare Podcast. That said, it does not include the judge’s writings on certain topics that are only tangentially related to foreign affairs and national security. Thus it omits writings that may be relevant to Kavanaugh’s views on the investigation by Special Counsel Robert Mueller, which both Benjamin Wittes and Steve Vladeck have discussed. And while our list addresses questions of privacy and surveillance, it does not include Kavanaugh’s writings on the Fourth Amendment more generally, which Orin Kerr has analyzed.

Finally, while we conducted a thorough search, we no doubt missed some items of interest. Do you know of a significant Kavanaugh statement or writing that should appear on this list? Please let us know and we will update it accordingly.

On International Law

Al-Bihani v. United States, 590 F.3d 866 (D.C. Circuit 2010) (en banc) (concurrence)

Kavanaugh’s concurrence in al-Bihani provides the most detailed account to date of his views on the role of international law in the U.S. legal system. His argument was that international law has no judicially cognizable role in the U.S. legal system, except where the political branches explicitly incorporate it by statute, regulation or self-executing treaty. On these grounds, he contended that the 2001 Authorization for Use of Military Force (AUMF) is not limited by principles of international law.

Notably, Kavanaugh is concurring here in the denial of rehearing en banc an earlier panel opinion that he joined. While the court denied rehearing, it issued a statement indicating that it viewed the panel’s conclusion that the 2001 AUMF is not limited by international law as non-precedential. Kavanaugh’s concurrence responds to this point.

Hamdan v. United States, 696 F.3d 1238 (D.C. Circuit 2012) (opinion for the court)

Doe v. Exxon Mobil Corp., 654 F.3d 11 (D.C. Circuit 2011) (dissent)

El-Shifa Pharmaceutical Industries Co. v. United States, 607 F.3d 836 (D.C. Circuit 2010) (en banc) (concurrence)

Despite his narrow view of when international law applies, Kavanaugh has occasionally engaged with it in his capacity as a judge—particularly where incorporated by statutes.

Writing for the court in Hamdan, Kavanaugh vacated the conviction of a terrorism suspect tried by the Guantanamo Bay military commissions, in part on the grounds that “material support for terrorism” is not an offense under customary international law.

Dissenting in Exxon, Kavanaugh similarly indicated that he would have dismissed the plaintiffs’ claims under the Alien Tort Statute on the grounds that customary international law does not recognize corporate liability, among other grounds.

Finally, in el-Shifa, Kavanaugh summarily rejected the plaintiffs’ contention that the mistaken destruction of innocent civilians’ property during wartime—or the denial of an administrative claim seeking compensation for the same—violates customary international law.

Remarks on “The Law of Nations and the United States Constitution” panel at Georgetown University Law Center (2017)

Remarks on “The Law of Nations as Constitutional Law” panel at the Virginia Law Review Centennial Symposium (2014)

Remarks on “The Role of the Courts in Intelligence and National Security” at New York University’s Center for Law and Security (2013)

Remarks on “War, Terror, and the Federal Courts, Ten Years After 9/11” panel at the annual meeting of the Association of American Law Schools (2012)

Kavanaugh has repeatedly discussed his views on international law at legal conferences and other events. In these remarks, he has often emphasized his belief in judicial restraint and deference to the political branches on matters of foreign affairs and national security.  (Note: The record of his most recent comments at Georgetown is forthcoming in September.)

On War Powers

Separation of Powers During the Forty-Fourth Presidency and Beyond,” Minnesota Law Review (2009)

In this article, Kavanaugh emphasized the importance of the Youngstown framework for evaluating the shared authorities of Congress and the executive over the conduct of warfare. He noted that relying on the president’s exclusive constitutional authority to evade legislative limitations on the conduct of war “is not likely a winning strategy” outside of a few historically established circumstances. Yet he also asserted that courts should resist inferring congressional opposition to executive-branch activities from anything but explicit statutory prohibitions.

Congress and the President in Wartime,” Lawfare (Nov. 29, 2017)

In a Lawfare review of Judge David Barron’s book “Waging War,” Kavanaugh lauded Barron’s “originalist and historical-practice case” that congressional authorization is needed for substantial foreign conflicts and that Congress can regulate the president’s conduct of warfare.

Al-Bihani v. United States, 590 F.3d 866 (D.C. Circuit 2010) (en banc) (concurrence)

In his al-Bihani concurrence, Kavanaugh contended that the president “possesses independent authority under Article II of the Constitution to act against al Qaeda and the Taliban—and to detain members of those groups—even without congressional authorization,” at least in the absence of congressional opposition and subject to certain constitutional limits.

Remarks on “The Role of the Courts in Intelligence and National Security” at New York University’s Center for Law and Security (2013)

Remarks on “War, Terror, and the Federal Courts, Ten Years After 9/11” panel at the annual meeting of the Association of American Law Schools (2012)

While a panelist at events, Kavanaugh has on several occasions elaborated on his views regarding war powers. He has generally emphasized that federal courts should enforce limits that Congress places on the executive’s actions as well as constitutional limits on the authority of both, but that they should not independently second-guess the political branches’ actions with regard to foreign affairs and national security.

Remarks at confirmation hearing before the Senate Judiciary Committee (2006)

During his 2006 confirmation hearings for his current position on the U.S. Court of Appeals for the D.C. Circuit, Kavanaugh declined to answer a question regarding Congress’s ability to amend the Uniform Code of Military Justice during wartime. However, he reiterated his confidence in Justice Robert Jackson’s Youngstown framework as a means of understanding the relationship between the respective constitutional authorities of Congress and the executive branch.

On Detention

Al-Bihani v. United States, 590 F.3d 866 (D.C. Circuit 2010) (en banc) (concurrence)

Ali v. Obama, 736 F.3d 542 (D.C. Circuit 2013) (opinion for the court)

Uthman v. Obama, 637 F.3d 400 (D.C. Circuit 2011) (opinion for the court)

Kavanaugh has written several opinions supporting the legality of law-of-war detention operations at Guantanamo Bay.

In al-Bihani, Kavanaugh concurred in the denial of a rehearing for an earlier panel opinion he had joined, which held that the 2001 AUMF authorizes the detention of members of al-Qaeda, the Taliban and associated forces as well as those who “substantially support” those groups. His concurrence, as discussed above, argued that this authorization was not subject to international law limitations.

In both Uthman and Ali, Kavanaugh upheld detentions against habeas challenges on the grounds that the factual record—which showed that both defendants spent time in proximity to al-Qaeda members and activities, including temporary residence at an al-Qaeda-affiliated guest house—demonstrated each was “more likely than not” part of al-Qaeda.

Omar v. McHugh, 646 F.3d 13 (D.C. Circuit 2011) (opinion for the court)

Writing for the court in McHugh, Kavanaugh held that a U.S. citizen lawfully detained by the U.S. military overseas and pending transfer to the custody of a foreign government did not have a constitutional or statutory right to judicial review of the conditions in which that foreign government would likely hold him, including the likelihood of torture.

Speech on “Justice Scalia and Deference” at George Mason University’s Antonin Scalia School of Law (2016) (summarized here)

Kavanaugh wagered that a future Supreme Court would overturn its holding in Hamdi v. Rumsfeld permitting the military detention of a U.S. citizen pursuant to the 2001 AUMF, in line with Justice Antonin Scalia’s dissent in that case. The judge also said that the lifetime detention of U.S. citizens without criminal trial is “shocking” to many Americans.

Remarks on “War, Terror, and the Federal Courts, Ten Years After 9/11” panel at the annual meeting of the Association of American Law Schools (2012)

In response to a question at this event, Kavanaugh expressed his view that the president does not have preclusive constitutional authority regarding the transfer of detainees, meaning that such transfers can be regulated by Congress. He noted, however, that a situation has not yet arisen wherein congressional restrictions on transfer are in direct conflict with a habeas determination that a detainee should be released.

On the Military Commissions

Hamdan v. United States, 696 F.3d 1238 (D.C. Circuit 2012) (opinion for the court)

Writing for the court in Hamdan, Kavanaugh vacated the conviction of Guantanamo Bay detainee Salim Hamdan by a military commission on the grounds that the crime of which Hamdan was convicted—material support—was not prosecutable by courts-martial as a war crime at the time of his actions. Kavanaugh read the Military Commissions Act (MCA) of 2006 as having been drafted to avoid serious Ex Post Facto Clause concerns by not authorizing the retroactive prosecution of crimes. As discussed above, Kavanaugh premised this conclusion in part on the fact that the statute establishing military commissions’ jurisdiction prior to the MCA (codified at 10 U.S.C. § 821) incorporates the international law of war by reference, and material support is not an offense under customary international law.

Al-Bahlul v. United States (“Bahlul II”), 840 F.3d 757 (D.C. Circuit 2016) (en banc) (concurrence)

Al Bahlul v. United States (“Bahlul I”), 767 F.3d 1 (D.C. Circuit 2014) (en banc) (concurrence in part and dissent in part)

In the al-Bahlul line of cases, Kavanaugh argued that the conviction of a Guantanamo Bay detainee for the offense of conspiracy should be upheld. (Notably, the court in Bahlul I overruled Kavanaugh’s reading of the Military Commissions Act in Hamdan but held that the Ex Post Facto Clause applies directly to Guantanamo Bay detainees, resulting in a similar outcome.)

In Bahlul I, Kavanaugh contended that military commissions’ pre-Military Commissions Act traditional jurisdiction (as defined by 10 U.S.C. § 821) encompasses not only international law offenses but also offenses established by “historical U.S. military commission tradition and practice.” He argued that the 1865 trial of the Lincoln conspirators and the 1942 trial of Nazi saboteurs—both by military commission—included conspiracy offenses. Thus, the defendant’s conviction for conspiracy did not raise concerns under the Ex Post Facto Clause.

Separately, in both Bahlul I and Bahlul II, Kavanaugh also rejected arguments that various constitutional provisions prohibit Congress from authorizing the executive to try offenses by military commission that, like conspiracy, are not violations of international law. Kavanaugh once again cited historical practice in the Lincoln and Nazi saboteur military commissions, as well as other military commissions that tried defendants for crimes, such as espionage, that similarly are not international law offenses.

In re: Khadr, 823 F.3d 92 (D.C. Circuit 2016) (opinion for the court)

Writing for the court in In re: Khadr, Kavanaugh denied a petition for a writ of mandamus seeking to disqualify a member of the U.S. Court of Military Commission Review on the grounds that he unlawfully maintained a private law practice. Kavanaugh recognized the persuasiveness of the petitioner’s argument but found that the issue was at best disputed, meaning petitioners’ right to relief was not “clear and indisputable” as is required to warrant mandamus relief.

Remarks at confirmation hearing before the Senate Judiciary Committee (2006)

During his 2006 confirmation hearing, Kavanaugh indicated that he supported the Bush administration’s decision to repudiate legal memoranda authorizing certain interrogation practices widely considered to be torture in certain circumstances, despite statutory limitations. He also indicated that he did not agree with the reasoning in those memoranda.

On National Security in Civil Litigation

Meshal v. Higgenbotham, 804 F.3d 417 (D.C. Circuit 2015) (concurrence)

In Meshal, the court opposed the extension of a Bivens remedy to a plaintiff who claimed that U.S. government personnel detained and tortured him overseas in coordination with foreign officials. Kavanaugh wrote separately to elaborate upon his reasoning, arguing that the courts have not extended Bivens remedies extraterritorially or to congressionally authorized national-security-related activities. He further contended that the federal courts should decline to extend remedies in such situations absent direct congressional action, as the courts should defer to the political branches on foreign relations and national security matters.

Doe v. Exxon Mobil Corp. (“Doe II”), 654 F.3d 11 (D.C. Circuit 2011) (dissent)

Harbury v. Hayden, 522 F.3d 413 (D.C. Circuit 2008) (opinion for the court)

Doe v. Exxon Mobil Corp. (“Doe I”), 473 F.3d 345 (D.C. Circuit 2007) (dissent)

Kavanaugh has similarly argued that civil litigation should be dismissed where the executive branch reasonably explains that it conflicts with U.S. foreign policy or national security interests.

In both Doe cases—which dealt with Alien Tort Statute claims based in both federal and state law—Kavanaugh based this position on earlier policy statements issued by U.S. government officials, even though the United States did not intervene directly in the litigation. Doe I described this decision as an application of the political question doctrine, while Doe II tied it to pragmatic considerations entering into the recognition of Alien Tort Statute claims under relevant Supreme Court precedent.

Writing for the court in Hayden—which addressed common-law tort claims under state law—Kavanaugh similarly held that the plaintiffs’ claims posed non-justiciable political questions. He based this on the fact that the U.S. government contended that the respondents’ alleged conduct had occurred within the scope of their responsibilities as U.S. officials. As a result, Kavanaugh agreed, adjudication would require judicial examination of the rationale behind the executive branch’s conduct of foreign policy.

El-Shifa Pharmaceutical Industries Co. v. United States, 607 F.3d 836 (D.C. Circuit 2010) (en banc) (concurrence)

In el-Shifa, Kavanaugh objected to the majority’s decision to dispose of the plaintiff’s claims—which related to overseas U.S. military activities—on the basis of the political question doctrine, instead of addressing the plaintiff’s failure to articulate a plausible legal basis for the claim. He argued that the political question doctrine has never—and should never—be applied where a claim challenging the executive branch’s actions is directly pursuant to a statute. Resolving such direct conflicts between the political branches is a core judicial function, Kavanaugh wrote, and applying the political question doctrine in this case would effectively aggrandize the executive’s preclusive constitutional authority.

Remarks on “War, Terror, and the Federal Courts, Ten Years After 9/11” panel at the annual meeting of the Association of American Law Schools (2012)

In his comments at this 2012 panel, Kavanaugh expressed reservations over the judicial recognition of remedies under the Alien Tort Statute and Bivens, noting that “courts still have reluctance [to recognize causes of action] when Congress has not regulated a particular activity,” particularly where related to foreign relations and national security. He similarly implied that he views the application of state tort claims to such cases as preempted by congressional inaction, due to the dominant role exercised by the federal government over foreign relations and national security.

On Privacy and Surveillance

Order in Klayman v. Obama, No. 15-5307 (D.C. Circuit Nov. 20, 2015) (per curiam) (concurrence)

In a brief concurrence to an order denying a request for rehearing en banc, Kavanaugh expressed his view that the metadata collection program then authorized by Section 215 of the Patriot Act was consistent with the Fourth Amendment. He indicated that the collection of such information from third parties, such as telecommunications companies, does not constitute a “search” for Fourth Amendment purposes under relevant Supreme Court precedent. Even if it did, Kavanaugh argued, such collection would be justified under the “special need” exception to Fourth Amendment warrant requirements due to the “critically important special need” of preventing terrorist attacks on the United States.

United States v. Jones, 625 F.3d 766 (D.C. Circuit 2010) (en banc) (dissent)

In Jones, Kavanaugh joined a dissent arguing that the government’s warrantless use of a global positioning system (GPS) device to track an individual’s vehicle was not a Fourth Amendment violation under the Supreme Court’s precedent in United States v. Knotts. He wrote separately, however, to posit that the government’s placement of the GPS device on the defendant’s car without a warrant could itself constitute a physical intrusion in violation of the Fourth Amendment violation. (Notably, in reviewing Jones, the Supreme Court—in an opinion written by Justice Scalia—adopted Kavanaugh’s approach.)