If Donald Trump were, at some point in his Presidency, to turn to or even, in some wild way, to expand on some of the more dubious practices of the immediate post-9/11 years—mass surveillance, indefinite detention, torture—how might a Supreme Court that included Brett Kavanaugh react? One way to answer that is to ask how Kavanaugh acted back when he was close to what might be called the scene of the crime: he was an associate White House counsel, from 2001 to 2003, when some of his colleagues were turning out memos effectively allowing torture and throwing together plans for Guantánamo and military commissions that lacked crucial constitutional underpinnings. Some of the most notorious of the “torture memos,” as they became known, had been addressed to his boss, Alberto Gonzales, then White House counsel. Later, Kavanaugh was a staff secretary for President George W. Bush.
In 2006, Kavanaugh told the Senate Judiciary Committee, during his confirmation hearings for the Court of Appeals for the District of Columbia Circuit, that he’d known nothing about any discussions of those issues until the general public did—for example, after the torture memos became public, in 2004. (The memos were recognized as a source of disgrace, in part because of their efforts to come up with an absurdly narrow definition of torture in order to get around laws banning it, and were eventually withdrawn.) His denials are worth quoting at some length, because they raise yet more questions: whether he told senators the truth twelve years ago—and whether, as a result, they can trust him now. Senator Patrick Leahy, of Vermont, wrote in a Times Op-Ed, posted on Monday, that he believes Kavanaugh provided “a misleading account of his work in the White House,” making a full examination of his paper trail “all the more urgent.”
Kavanaugh was unequivocal at his confirmation hearings. He gave an unqualified “No” when the Judiciary Committee chairman, Arlen Specter, then a Republican, asked if he had had anything to do with issues related to the memos and “allegations of torture,” or to rendition, or, more generally, to “questions relating to detention of inmates at Guantánamo.” (Kavanaugh also said no when Specter asked if he would personally sanction “or participate in” torture.) He told Chuck Schumer that he had not been involved in any discussions about torture, in the context of the memos or otherwise. He then told Dick Durbin, “Senator, I did not—I was not involved and am not involved in the questions about the rules governing detention of combatants or—and so I do not have the involvement with that.”
Kavanaugh told Senator Leahy that he didn’t even see any documents related to torture or to a Bush-era National Security Agency warrantless-wiretapping program “until they had been “publicly released,” even though, when he was the President’s staff secretary, all manner of documents passed through his hands. “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,” he told Leahy. “This was not part of my docket, either in the counsel’s office or as staff secretary.”
In 2007, though, a year after that hearing, the Washington Post reported on a heated meeting that had taken place at the White House in 2002, which addressed whether the Supreme Court might possibly have a problem with an assertion that the President had absolute discretion to label an American citizen, or anyone else, as an “enemy combatant,” and to detain him or her without any access to counsel. An associate White House counsel named Bradford Berenson made what ought to have been the obvious argument that there were at least five Justices on the Court who wouldn’t like that, at least with regard to citizens. In particular, he thought that Justice Anthony Kennedy wouldn’t go for it. The Post also reported that Berenson had backup from Kavanaugh, who had been a clerk for Kennedy, and “had made the same argument earlier.” In an article published last week, the Post further reportedthat Berenson, frustrated with the opposition from David Addington, a lawyer who had worked with Vice-President Dick Cheney, “asked for Kavanaugh to join the conversation. Kavanaugh said he agreed with Berenson that Kennedy would favor a hearing and legal representation for detainees, according to the two former White House officials.” According to the Post’s sources, the meeting devolved into a shouting match that included a table being pounded so strenuously that it sent a tray of nuts flying: “A White House secretary knocked on the door to ask whether everything was all right,” a participant said.
A couple of points are worth noting. 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. (Kavanaugh didn’t respond to the Post’s request for comment on the new story. Raj Shah, a White House spokesman, told the paper that “Judge Kavanaugh’s testimony accurately reflected the facts.”) When the 2007 report came out, Durbin told National Public Radio that he felt “perilously close to being lied to”; he also sent Kavanaugh a letter saying, “it appears that you misled me, the Senate Judiciary Committee, and the nation.” He asked Kavanaugh for “an explanation for this apparent contradiction.”According to Durbin, he never really got one. The day after President Trump announced Kavanaugh’s nomination, Durbin tweeted out an image of the letter with the comment, “I’m still waiting for an answer.”
Durbin, like Leahy and other Senate Democrats, argues that the conflict means that today’s Judiciary Committee can’t take Kavanaugh’s other denials at face value, either—that they need to see all the documents that he handled in the White House, and also maybe from when he was working for Ken Starr, the independent counsel, during the Clinton years. Even if the documents were, on the face of it, “innocent,” Durbin suggested last week, they might catch Kavanaugh in some sort of an untruth. Would it matter, in this political environment, if they did? The Democrats got some encouragement last week, when the Trump Administration withdrew its nominee for a seat on the Ninth Circuit, Ryan Bounds, after articles that he’d written as a undergraduate at Stanford, in which, among other things, he compared members of campus minority-activist groups to Nazis, proved too much for Republican senators Tim Scott, of South Carolina, and Marco Rubio, of Florida. They said that they would not support him; with a Republican majority of only 51–49 (and really one vote less, given Senator John McCain’s illness), that was enough to kill it. But the stakes in that case, and the pressure on senators to stay in line, were not as high as with a Supreme Court nomination. The Republicans have argued that the Democrats don’t really care what’s in the Kavanaugh documents—many have already said that they will oppose him, after all—and that they are just trying to stall until after the midterms, hoping that they will win a majority and be able to reject the nomination without any Republican votes. The corollary to that complaint is that the Republicans don’t care what’s in them, either. They just want Kavanaugh’s seat on the Court secured before November.
But another question has to do with that argument in the White House in 2002. The Bush White House ignored the warnings about its policies not standing up to the Supreme Court’s scrutiny and went ahead and adopted a startlingly expansive view of its own powers over “enemy combatants.” Presidents tend to think like that, and yet the President we have now might come to make his predecessors seem modest on this score. The Supreme Court, with Kennedy’s vote, did eventually push back against and restrain the Bush Administration. Kavanaugh needs to be asked not only whether he did, indeed, contribute to the earlier discussions regarding what Kennedy might do, but whether he thought that what Kennedy did do was right. How would Kavanaugh have voted, and how might he vote if Trump did half the things that he threatens to do in his tweets, such as stripping those he considers disloyal of their citizenship? What does Kavanaugh think of the ahistorical rejection of the Fourteenth Amendment’s promise of birthright citizenship, outlined in a recent Washington Post piece by Michael Anton, a former Trump official, that the President has suggested he shares? Kavanaugh’s confirmation hearings could become a forum for discussions that Americans never fully had, not only about accountability for torture but about challenges to our ideals that we are only beginning to glimpse.
What did Kavanaugh himself mean, for that matter, when, as a judge and not a staff lawyer, he wrote that he regarded the N.S.A.’s bulk collection of the telephone metadata of almost every American as “entirely consistent” with the Constitution? He added that, even if the bulk collection counted as a search limited by the Fourth Amendment—and he felt that it didn’t—it would be allowed because of the “special need” that the government has to prevent terrorism. “In my view, that critical national security need outweighs the impact on privacy occasioned by this program,” he wrote. That challenge was eventually rendered moot, because the Obama Administration and Congress acted to change the N.S.A.’s practices; those moves could, though, be reversed, and a new program brought to court again. The pretense that such discussions are taking place in some distant room is not one that can still be honestly maintained, if it ever could be. They are part of Brett Kavanaugh’s docket now.