If he is the constitutionalist he has claimed to be on several occasions, then he would know that the Constitution already prohibits the government from broad, warrantless searches of this nature. But his support of the legislation that signaled the downfall of American rule of law does not simply end with his favorable comments. Kavanaugh was also one of the individuals tasked with its drafting. He has been definitively credited with the line, “…the new law will update laws authorizing government surveillance.” And just this one line is rather problematic in itself. If he is the constitutionalist he has claimed to be on several occasions, then he would know that the Constitution already prohibits the government from broad, warrantless searches of this nature. This is not a protection that can simply be “updated.” And yet, his nonchalance over abolishing certain constitutional protections without a discussion of adopting an actual amendment is disconcerting.
The Torture Memos
The public’s discovery of the “torture memos” was a dark time in modern American history. We had been riding our moral high horse during the early years of the War on Terror, pretending that America was the global beacon of moral and ethical treatment. But when the memos, which were originally composed while Kavanaugh served the Bush Administration, were released in 2004, the entire world caught a glimpse of just how ugly military interventions really were.
The memos told a story of members of the Bush Administration attempting to broadly expand the legal definition of torture to justify such horrific acts as waterboarding and sleep deprivation as permissible. They also told of the administration’s quest to seek the authority to label anyone of their choosing an “enemy combatant,” thus, subjecting them to the possibility of indefinite detention in awful facilities like Guantanamo Bay. Their publication also added fuel to the already growing fire of animosity against George W. Bush who, at the time of the memo’s creation, was the employer of Judge Kavanaugh.
In 2006, when Judge Kavanaugh was being questioned by the Senate Judiciary Committee as he waited to be confirmed to the Court of Appeals for the District of Columbia Circuit, he went on the record stating that he knew nothing of these memos before their public release. At several points during his hearing, he denied having anything to do with these memos specifically stating that he was “not involved” in any conversations regarding the rules governing the detention of combatants He also denied ever having seen the correspondence at all. He even told Senator Leahy:
I think with respect to the legal justifications or the policies relating to the treatment of detainees, I was not aware of any issues on that or the legal memos that subsequently came out. This was not part of my docket, either in the counsel’s office or as staff secretary.
The reason this has raised red flags for those already skeptical about Kavanaugh is that his position at the time dictated that memos and other written correspondence would have passed by his desk at some point before reaching their end recipient.
Enemy Combatants
Additionally, a year after the 2006 hearing, the Washington Post reported on a contentious meeting that had occurred in the White House in 2002. The conversation was centered on speculation as to whether or not the Supreme Court would accept the Bush Administration’s assertion that they could label an American citizen an “enemy combatant” at their discretion, allowing the person in question to be locked up for an indefinite amount of time.
As per the Washington Post’s reporting, Judge Kavanaugh was not only present at this meeting but was specifically summoned to weigh in on the matter since he was himself a former clerk for swing vote judge, Justice Kennedy. At the meeting, he voiced his concerns that Justice Kennedy and other swing voters on the Supreme Court would never side with the administration’s controversial decision. This meeting was brought up again just a couple of weeks ago, addressing the concerns some Senators still have over Kavanaugh’s insistence that he had no role in such conversations when it appears that he did.
As the New Yorker points out:
First, attending this meeting or even just contributing a reading of Justice Kennedy’s likely view would seem to constitute taking part in a discussion on detention policies, and thus to contradict Kavanaugh’s sworn testimony.
Senator Durbin, who sat on the Senate Judicial committee in 2006 sent Kavanaugh a letter in which he states, “it appears that you misled me,” but he never received a response, even after he followed up with Kavanaugh recently after he had received the Supreme Court nomination.
Metadata: Due Process for Me, Not for Thee
The 2013 Edward Snowden leaks were arguably one of the most significant events to occur over the last decade. For those who thought the government wasn’t capable of this magnitude of corruption, the blindfold was removed and the government’s true intentions were revealed. For those already skeptical, the leaks had confirmed preexisting suspicions.
In many ways, the Snowden situation drew a line in the political sand. Those who stood for freedom believed in the people’s inherent right to privacy and in upholding the Fourth and Fifth Amendments. But those who supported and sustained the government’s mass surveillance of its own people made their views on individual liberty very clear. And Judge Kavanaugh was not on the right side of history.
At the heart of the Snowden situation was the question of whether or not metadata counted as government surveillance. The government, frantically scrambling to justify its actions, insisted that it was not actually data collection, since metadata did not technically provide any raw data. But metadata still gives very specific information about the type of data collected and therefore is still a violation of constitutional protections.
Kavanaugh also later stated that “that critical national security need outweighs the impact on privacy occasioned by this program.” However, in a ruling in the U.S. Court of Appeals for the D.C. Circuit, Kavanaugh ruled that “the Government’s metadata collection program is entirely consistent with the Fourth Amendment.” He also later stated that “that critical national security need outweighs the impact on privacy occasioned by this program.” Again, a rather odd conclusion for a staunch “constitutionalist” to support.
Congressman Amash expressed his concerns with Kavanaugh’s ruling, tweeting:
Future decisions on the constitutionality of government surveillance of Americans will be huge. We can’t afford a rubber stamp for the executive branch.
This mass surveillance of the American people not only violated the specific statutes in the Fourth Amendment that specified how individuals could be searched by the state, but it also violated the right of due process— the same due process that Kavanaugh has asked be upheld while he undergoes the confirmation process.
If the government would like to gain access to the private communications of American citizens, it must do so by going to a judge and obtaining a warrant. Due process is a staple of our American legal system. And while the allegations made by victims of sexual assault should be listened to and investigated, there is more to due process than allowing Judge Kavanaugh to have his day in court. If the government would like to gain access to the private communications of American citizens, it must do so by going to a judge and obtaining a warrant. This warrant must specifically state what property is being searched and what is being searched for, as is specified by the Fourth Amendment.
Requiring law enforcement to go through the proper channels to secure a warrant before violating the privacy of American citizens is part of due process. You cannot support “some” due process while blatantly abolishing certain safeguards that guarantee this right to Americans.
To be sure, accusers of sexual assault deserve to be heard, but before we pass judgment, due process needs to occur. But due process is not meant for one class of people; it is meant for every American citizen whether they are nominated for the Supreme Court like Kavanaugh, or happen to have a radicalized parent like sixteen-year-old Abdulrahman al-Awlaki, who was targeted and killed by the U.S. Military without any semblance of due process.
What’s at Stake
But even if the allegations prove to be false, there are still serious concerns surrounding Kavanaugh’s confirmation on the Supreme Court that should not be ignored. Currently, the entire country is obsessed with focusing on one very narrow aspect of Judge Kavanaugh’s life. True, if these claims turn out to be correct, there is a legitimate cause for alarm. But even if the allegations prove to be false, there are still serious concerns surrounding Kavanaugh’s confirmation on the Supreme Court that should not be ignored.
Most of our lives are now digital, which makes our information extremely vulnerable to hackers both private and government-sanctioned. We cannot afford to put ourselves at risk by empowering judicial candidates who have a proven record of trampling on Fourth Amendment rights.
Additionally, if there is ever a day when it is possible for Edward Snowden to return to the U.S. and receive a fair trial before the Supreme Court, it is hoped that our justices will be up to the task. And given Kavanaugh’s record of upholding the surveillance state in favor of national security, that future is highly unlikely.
