The abject fakeness of originalism is evident in the liars who claim that
“Establishment of religion” is ambiguous. It can mean nothing else than “faith based belief”. Honesty is dead in these courts judged by fake people and stooges of grifters.
17
Kavanaugh, hack in a black robe, make believe judge untethered from morality... In my opinion...
16
Much to do about nothing. He will be confirmed without a doubt and don’t count on sympathy for the guests of Guantanamo to make much of a difference, unless ISIS and it’s like have some Senators we don’t know about.
2
Linda Greenhouse deserves our gratitude for reminding us again that the imprisonment of suspected terrorists at Guantanamo, year after year, without charges or an opportunity to challenge their detention, is an offense against the rule of law, repeated every day that it continues. She also argues convincingly that Brett Kavanaugh is among the D.C. Circuit judges who have defied and effectively nullified Supreme Court decisions on the subject.
Kavanaugh's attitude toward the rule of law may have been demonstrated when he served on Ken Starr’s notoriously leaky Office of Independent Counsel staff investigating Bill Clinton. In the five months (11/97 to 4/98) in which he moved temporarily from OIC to Starr’s law firm, two of the gravest leaks occurred: the Lewinsky affair and Clinton’s affidavit in the Jones case.
In that time, a Starr deputy assured the judge that no one on the staff had discussed the case with the media, but did not specify whether this included ex-staffers. Soon afterwards, Kavanaugh rejoined OIC.
In August 1998, the reporter Dan Moldea told the court in an affidavit that a Starr deputy had arranged for him to discuss the case with an unnamed former staff attorney, on the theory that nothing barred former staffers from telling what they knew. Moldea recently identified the attorney: Brett Kavanaugh.
Was Kavanaugh party to a plan to reveal privileged information and mislead a court trying to stop leaks? The Senate and the public need to know.
27
Whatever might be said, "They have their lives and were not put against the wall as they would have been had they been Americans in the hands of Isis." How fortunate they remain.
2
I think that Linda could have gone much further in tying Kavanaugh to the travesty of Guantanamo. Ali v. Obama is a typical example of Kavanaugh’s contempt for due process and lack of any human sympathy. In 2013, Kavanaugh continued to maintain that “the United States is engaged in an ongoing war against al Qaeda, the Taliban, and associated forces.” As a result, Kavanaugh denied habeas corpus for a Guantanamo detainee captured in 2002 in Pakistan where, according to Kavanaugh, he participated in a “terrorist training program by taking English lessons” while allegedly staying at an al Qaeda “guesthouse.”
Kavanaugh wrote, “This is not a federal criminal trial or a military commission proceeding for war crimes. Rather, this case involves military detention. The purpose of military detention is to detain enemy combatants for the duration of hostilities so as to keep them off the battlefield and help win the war. Military detention of enemy combatants is a traditional, lawful, and essential aspect of successfully waging war.”
“We are of course aware that this is a long war with no end in sight,” Kavanaugh continued. Brushing off the concern about “lifetime detention,” Kavanaugh wrote, “The 2001 AUMF [Authorization for the Use of Military Force] does not have a time limit, and the Constitution allows detention of enemy combatants for the duration of hostilities.”
13
Sheesh Ms. Greenhouse -- can you possibly get any more attenuated? Beginning with a decision in which Kavanaugh did not even participate and focusing on four DC Court decisions, none of which were authored by Kavanaugh and only two of which he participated in? Your efforts to assassinate the Kavanaugh nomination are really running dry at this point.
6
So, the premise of the right is this: a country has the right to invade another country, take prisoners from it's citizenry, and hold them in an isolated site forever. There are a couple of questions, though.
1. Does the location of the prison matter? If it were in Kansas, would that make any difference to the legal fate of the prisoners?
2. Does the pretext matter? Can we invade a country, take prisoners, and hold them without trial? Even when we invaded Panama to catch Noriega, we had a sham trial after he was brought here. What about with no trial? What if it's just a whim of the president, as it was with Bush I.
3. What if we just shoot them? Is that legal? If so, why didn't we just shoot them?
4. The Iraq invasion apparently meant that there is no longer a need for a Declaration of War. True?
America wants answers!!!
10
We all can predict that if Kavanaugh is asked any questions at his Senate confirmation hearing about those Circuit Court panels he sat on regarding habeus corpus relief, he will refuse to respond on two grounds: first, he did not author any of the orders and, second, the issue may come up for Supreme Court review in the future. Presto, yet another patented dodge brought to the deliberately uninformed citizenry by these “hide the ball” legal undesirables.
11
We know Kavanaugh's opinion and judicial record, 97% of his records hidden or not hidden. It's all a dance until a strictly party-line vote can be held.
6
As i read this column we are now hearing of American citizens at the Mexican border having their passports revoked and their citizenship challenged. I wonder, if the government may unilaterally repudiate your citizenship, and if there is no habeas corpus protection for noncitizens outside the nations borders, of what value are any Constitutional protections for citizens?
20
The holding in Boumediene is consistent with basic principles concerning the separation of powers and the rule of law. It's not a big ask either - it simply requires detainees to be given a meaningful opportunity to challenge their detention before a Court. How does providing some measure of due process to these detainees put the United States in danger?
If anything, it provides some reassurance to the American people that those who are being being detained in their name - indefinitely and without trial - are being detained for good reason.
27
We couldn’t encounter a completely new kind of warfare to which we must respond effectively – deadly enemies who wear no uniform and answer to no state whose physical infrastructure and other assets might be vulnerable to reprisals by us, who embed themselves in civilian populations, who possess a deadly resolve to kill us and a willingness to blackmail women and children to blow themselves up killing innocents by threats to their families – and conduct that warfare within a legal framework that was designed for very different conditions. With time, we have adjusted our behavior to more closely align with our traditional protections, but this demonization of Guantánamo and how it was used is unreasonable.
It’s testimony to how strong our constitutional fence posts and institutional assumptions are that what was considered (and in some cases still is) necessary conduct was so isolated from our everyday life, which remains governed by those constitutional principles.
This is not on us: this is on THEM. We did not seek such warfare, it never involved masses of people at its worst, and over time we HAVE moderated our conduct.
That Kavanaugh might be tolerant of arguments that allow partial separation of a constitutional framework that governs 320 million Americans from a military exigency that affects 40 deadly enemies on foreign soil … doesn’t concern me. It shouldn’t concern you, either.
NOTHING about Guantánamo represents a threat to our courts or our country.
4
@Richard Luettgen On the contrary, it's a great recruiting tool for Islamic terrorists. "The Great Satan America claims to believe in due process and human rights, but they cage Muslims without trial and subject them to torture" The propaganda writes itself.
But beyond that, it does set a dangerous precedent of normalization. As soon as we start indefinitely imprisoning men without conviction, it becomes very easy to expand the groups of people to which due process is not afforded.
14
@Richard Luettgen
exactly--they won't compromise our freedoms, we'll do it ourselves because of them.
10
Thank you Linda for continuing to remind us all of Gitmo. In the history books of the future, Gitmo will be a long-term stain on the allegedly lawful USA "justice" system.
As the current POTUS desparges the justice system and attempts to supplant it with his authoritarian-dictatorial rule, Gitmo will remain an open wound that all of us (USA citizens and those from other civilized nations) who seek justice under the law will feel shame and will feel contempt towards those perpetuate it.
15
Thank you for writing again about the men held at Guantanamo. There is no excuse for denying any person a meaningful and impartial hearing about the legality of their imprisonment.
20
Very important article. Thank you. Guantanamo continues to be a blot on America’s reputation in the world. Trials must take place, or they should be released. The law is clear.
12
What is the point about writing about Kavanaugh? He is going to be approved and he is going to be approved (as was Gorsuch who preceded him) because Trump focused on jobs for those people in the middle of the country whereas Clinton prioritized other issues.
The Democrats forgot to be the "party of the people" and let Trump assume that role. Instead of empathizing with people not from the coasts who also needed to feed, clothe, shelter, and save money to send to university for their children, Clinton called them "deplorables."
The entire Democratic Party let Trump be the Democrat and emphasize creating jobs for Americans.
For example, he promised to renegotiate NAFTA, a move endorsed by Democratic Senator Sherrod Brown, and he has kept his word by closing an agreement with Mexico.
Why didn't Clinton promise to renegotiate this unfair trade agreement and steel Trump's thunder? Perhaps it had something to do with the $675,000 she received for 3 talks from Goldman, the Wall Street banker that is the icon for the 2008 financial crisis -- talks she refused to disclose the contents of.
Trump thought of workers and their jobs, Clinton of Goldman and other Wall Street bankers.
We are stuck with a far right court for at least two decades thanks to the Democrats letting Trump assume the role of Democrat and "party of the people." Let's learn from that and after Trump's second term, let's run a candidate that puts jobs first.
Jobs, jobs, jobs. It's that simple.
8
“Trump thought of workers” - this proposed agreement achieves less than TPAC and only makes small insignificant gains. Evidence is clear that Trump only thinks of himself.
9
Your article which suggests that Judge Kavanaugh's views on Guantanamo were outside the mainstream or at best demonstrated that he was unfit to serve on the court left me confused. Judge Kavanaugh did not decide either of the two appeals in question. Rather he was a member of two panels which unanimously ruled against Guantanamo prisoners, meaning that possibly as many as five other judges agreed with Judge Kavanaugh. And nine active judges voted to deny rehearing en banc. While you write that these votes demonstrate that Judge Kavanaugh is unfit to serve on the Supreme Court, this evidence suggest that Judge Kavanaugh is in the mainstream of American judicial philosophy. Indeed he is as qualified, if not more so, as any other nominee proposed for the past twenty years and deserves to be promptly confirmed.
3
@Christopher Rillo
Ms. Greenhouse is not saying Kavanaugh is outside the mainstream. Rather, she's saying that his position on Guantanamo is not in accord with the precedent of Boumedienne.
14
@Christopher Rillo There ain't no such thing as a speedy trial in courts run to stack up fees for lawyers.
3
@SCReader In other words, she appears to have a problem with the DC Circuit. Hard to see how this sheds much if any light on Kavanaugh.
1
Every time a conservative screams "judicial activism" it's actually a massive act of projection.
23
Without knowing much regarding Mr. Kavanaugh judicial past, your very illuminating piece (as always), confirms that this man is another poor and disgraceful choice for the Supreme Court as was Gorsuch who, not surprisingly, is a total ideological voice sitting already at the Supreme Court. Being selected by this president of ours, it automatically disqualifies the nominee from being "qualified" and worthy of any legitimating "process" of confirmation.
22
@Maita Moto This is hardly illuminating re Judge Kavanaugh. He is barely visible and authored none of the opinions Ms. Greenhouse addresses in her column.
1
At sixteen years old I attended the 1976 Republican National Convention on a press pass I got from my aunt who ran a small newspaper. The pass gave me opportunities to easily mingle with newest crop of Young Republicans, Reagan/Ayn Rand acolytes, and up-and-coming Neocon disciples.
I was a high school student from Denver so I made sure I connected with other Coloradans in attendance. It's not hard for me to imagine that Kavanaugh was somewhere there among the youthful, zealous throngs, probably in tow with Anne Gorsuch and her son Neil, who were also from Colorado. (Brett and Neil eventually attended the same Jesuit prep school in D.C.)
Even though I leaned pretty hard to the right at the time, the experience of talking with, listening to and watching these people in their element was quite an eye-opener for me. Everyone seemed pretty sharp, but they also exhibited a predilection for using their intellect in cunning, almost sinister ways. They certainly projected that they were on some sort of mission.
They were scary then; they're much scarier now as adults in positions of responsibility and authority.
I appreciate truly smart people like Ms. Greenhouse who can peer into the minds of these connivers and confirm the warning signs that I sensed at a young age. I left Kansas City with an altered outlook. More than ever, this generation's impressionable kids need access to objective, insightful information for developing their opinions and world view. Thanks Linda!
51
Scalia's dissenting rationale: “it will almost certainly cause Americans to die." is fit for a tabloid paper or Internet rant, but not for the logic of SCOTUS decision. Any decision that results in the release of a suspect can cause this result. From Gideon to Miranda to OJ we see the the courts must never abandon the standards and procedures that protect Equal Justice Under Law.
Whether the suspect is a Nazi, a child molester, Al Qaida, or an Oklahoma City bomber, they must be given fair hearings and trials. Justice Kennedy understood this, even if some don't. Without it we behave as totalitarians.
57
Scalia's statement again confirms that Court decisions are based on expediency and not on the Constitution.
32
@david
I would suggest that Scalia's statement refletcts his personal opinions, which were not only extremely conservative but often exceedingly idiosyncratic. Even though he had an excellent legal mind, I never could concur with the notion that he was a brilliant jurist
12
Scalia was an idealogue who used "originalism" when "originalism" supported what he wanted to decide and abandoned "originalism" when it did not.
Scalia wrote that it is not unconstitutional to execute an INNOCENT person who received a fair trial.
That sick viewpoint should have been sufficient to keep him off the Court.
5
All that matters to Mitch and his SCOTUS seat stealing caucus is whether Kavanaugh will be a reliable conservative warrior on the court.
While his public record, including comments denigrating Roe, speaks volumes, he clearly has something to hide from his days as a legal toady for Bush junior. Otherwise, his entire archived work output from that period would be available for public and Senate Judiciary Committee review.
Instead, Trump’s private ‘ethics’ lawyer, Bobby Burchfield, was tasked with reviewed the archives and releasing only those deemed relevant to Senate Democrats. The vast majority didn’t make the cut, and there’s no appeal.
This same lawyer is now part of a U.S. Justice Department investigation as to whether a fugitive Malaysian financier laundered tens of millions of dollars through two associates and used the funds to pay a U.S. legal team that includes former New Jersey Gov. Chris Christie and Burchfield.
Curious, no?
https://www.wsj.com/articles/u-s-probing-whether-malaysian-fugitive-laun...
21
@Michael Tyndall
Much time has passed since "ethics" mattered much to most conservatives: "Winning" seems to be their only goal
5
I didn’t really get that, but I assume that you believe that Guantánamo itself is unconstitutional.
1
Treaties on war crimes (including how to treat unlawful combatants) and crimes against humanity are actually very clearly written. They were in the early 1970's taught to Marine Corps Second Lieutenants such as myself. These treaties, according to the US Constitution, become part of the highest law of the land. Kavanaugh was an outlaw in his actions described by Greenhouse.
32
My guess that even W Bush looks back and knows how much harm he did to the world.
Taking a balanced budget, zero deficit, from Clinton and handing Obama an unbelievable $1.4 Trillion deficit.
The sub-prime meltdown and the worst recession since the Great Depression.
The Iraq invasion that the Middle East and Europe will be paying the price for two generations at least.
And the complete disregard for human rights with Guantánamo and waterboarding.
44
@Independent
"My guess that even W Bush looks back and knows how much harm he did to the world."
No. He doesn't. None of the Republicans do. They just don't care. Shame on Bush and all of them. Shame!
5
Guilty until proven innocent, and no right to prove your innocence. This is what was created with Guantánamo, and it has now infected the mainland as seen with the recent Trump Administration decision to deny and/or remove passports from persons born in certain parts of the country unless they can prove their citizenship. Of course, essentially no evidence is acceptable, including a birth certificate. Bit by bit we are losing the basic foundation of this country.
38
"When I cite a law, it means just what I choose it to mean -- neither more nor less." "The question is," said Alice, "whether you can make a law mean so many different things." "The question is," replied President Trump, "which is to be master -- that's all."
Humpty Dumpty in the White House.
25
If there were any honor among federal judges, they would all decline a Trump nomination to the Supreme Court to protest the extra-constitutional treatment of Merrick Garland. Instead, the eager lapdogs Gorsuch and Kavanaugh ("Merrick who?") sit up and beg their way to the front of the Federalist Society line.
Unlike Robert Bork, who had to do Nixon's bidding in the hope of an eventual nomination, Gorsuch and Kavanaugh will get the opportunity to repay their benefactor after they're firmly ensconced in their lifetime appointments.
29
They also held children there.
Inevitably I make this comparison. The Germans in the run up to genocide and world war reinterpreted the law and explicitly rewrote it in many cases to single out people and groups they designated as not German or entitled to being treated like a German.
This was all pretty much settled during the last years of the Vietnam War I had thought. The CIA and the president and others had been caught out for having acted with impunity. Congress after the investigations and changes made to "correct" the problems had also said that no one was allowed to act with impunity and that anyone who was working for the US government regardless of where they were in the world was required to follow US law as if at home. That includes the arrest and holding of prisoners.
There is a pattern to how people who abuse their authority under the US system do that abuse. Mainly it involves intentionally not looking into the mirror and taking actions of greater and greater consequence to make the "mistake" seem much smaller in comparison. Each move not being a well considered action is of course a mistake which requires and even larger response, adinfinitum.
When it gets big enough people start asking questions the response is blaming others over whom they have no control.
There is never proof readily available to support these claims and investigation always turns up the fact that the person who gave rise to the inquiry lied.
15
@magicisnotreal, right now American citizens with Spanish-sounding surnames who live near the southern border are being denied passports on grounds that their birth certificates are in doubt, without cause for that doubt.
Hispanic-descendant American citizens have been detained, many, and for long times. These articles are but two which discuss the growing dis-entitlement of American citizens by the Trump administration and agencies reflecting the abrogation of law and custom it has brought about:
http://fortune.com/2018/08/30/trump-administration-passports-immigration/
http://www.latimes.com/local/lanow/la-me-citizens-ice-20180427-htmlstory...
16
What is really at stake with this nomination, and the unfortunate retirement of Justice Kennedy, is the loss of men of public conscience in our institutions. A loss happening in all three branches (e.g. the death of McCain, and, of course, the substitution of President Obama with the current occupant of the Oval Office).
Guantánamo remains a dark stain upon our nation, one which has proven very difficult to lift out. The Boumediene ruling should have been a turning point where the rule of law, and our fundamental principles, overrode political expediency and the policy-by-fear which characterized all our great errors in the so-called War on Terror. The fact that the Circuit Courts have essentially gone rouge on this precedent is disturbing, and the fact that one such Circuit Court judge is now to be elevated to the Supreme Court, by a man who daily displays his utter disdain for the rule of law, is deflating.
Americans, of every political stripe, must push back on these trends and demand of our public officials and of the judiciary that our national principles and ideals are to govern even in hard cases. We must demand that our Republic remain one of laws and not of men.
55
Would love to see the same type of column written about Ron Desantis' work at the Guantanamo Bay Joint Detention Facility. As well his Guantanamo Bay Recidivism Prevention Act.
10
Progressives never provide an intelligible response as to why enemy combatants captured and contained on foreign soil are entitled to constitutional protections. This progressive view of the law was not what the founding fathers intended. In fact, in colonial times, U.S. citizens who were found to be traitors were summarily shot. If Judge Kavanaugh’s placement on the bench restores our founding document as it was originally intended, I will whole-heartedly support him.
4
@Sue Mee
As long as you're sure they're "enemy combatants"!
You'd like people to be "summarily shot" if someone thinks they're traitors?
I know of one traitor, and he's in the White House. Lots more of the bought and paid for variety in Congress (McConnell - consider Merrick Garland; Ryan, etc. etc.). And have you looked at Trump's cabinet?
Cowardly bullies and gansterish traitors.
I suggest you actually read our founding document, and study the lives of our founders. They would be spinning in their graves at this conman bunch, who worship the voices in their heads as god.
57
@Susan Anderson Just to be clear, I don't think these "traitors" should be shot. I just think they should receive real justice. Just like I think there should be free and fair elections in the US. Currently international evaluations do not show that we have fair elections. Banana republic, here we come. Trump would be happy to join Assad and Maduro in destroying those who disagree with their profiteering and autocratic ways.
18
@Sue Mee
How do you know if these people are
"Enemy combatants"
Did you know the US military offered bounty money in Afghanistan?
You could claim someone was in Al Queda and get $5000.
Without the rule of law , we become as lawless as terrorists. And that is why civilized nations believe in justice and a fair trial. You don't just shoot people because you decide they are guilty. That is what Nazis do .and Stalinists.
22
“Forgive us our trespasses, as we forgive those who trespass against us...”
This man has no place being a judge, let alone a Supreme Court Justice.
28
I thought the writ of habeus corpus was an inalienable right. Guess not :(
16
@A. Fernandez: No, it's nothing of the kind. It is alienable, as when Abraham Lincoln suspended the writ (for US citizens, no less) during the civil war. And in any event foreign nationals not on US soil (and Gitmo is in Cuba, not the US) simply do not have or enjoy US constitutional rights. The executive branch is in charge -- rightly so -- and it as whittled the Gitmo detainees down to 40 from 780. That's not a bad record. But all the left-leaning comments I am reading in response to Ms. Greenhouse's hatchet job of an article (which notably admits that Kavanaugh had next to nothing to do with the judicial decisions she complains of) ignore the simple fact that Gitmo is a lawful military prisoner of war camp, one created during a war that is not over. Lots of Germans were held in like prison camps during and after WWII for indeterminate periods of time (including Ferdinand Porsche and Werner Von Braun among other relatively benign figures), and nobody though they had a right to file habeas corpus petitions in US courts. But the left forgets all this, so eager are they to depict right wing lawyers, politicians and judges as Barbarians or Visigoths. No matter. Gitmo is, inarguably, a lamentable yet constitutional and very practical solution to a very real problem (that alot of those 780 were and are implacably committed to killing infidels like us). Virtually none of the authors of comments understand this. That or they are pretending not to understand.
2
@A. Fernandez
Doesn’t apply to enemy combatants.
@A. Fernandez
See Wikipedia re Lincoln's suspension of habeas corpus.https://en.wikipedia.org/wiki/Habeas_Corpus_Suspension_Act_(1863)
A writ of habeas corpus may be issued upon a petition submitted to a court by an interested party on behalf of a prisoner. (Prisoners are likely to be held in circumstances that prevent their petitioning for themselves.)
I always deeply appreciate Linda Greenhouse's thoughtful and well reasoned articles.
It has always bothered me that it was possible for local people far abroad to pursue personal feuds to hurt people they don't like or wish to remove, exploiting US prejudices and the incomplete information created by vast geographical and cultural differences. (We have a similar problem here, where the school to prison pipeline (exacerbated by for-profit private prisons) and Living While Black issues (keep your registration on the dashboard so you can't be shot reaching for required documentation, let alone disproportionate stops for minor offenses) and economic discrimination remove nonexistent "threats" from voting and living with the rights and privileges of a good citizen.)
On voting rights and presidential privilege, Judge Kavanaugh is a fringe candidate who will advantage the minority who are already governing as if the other party - the majority, mind you, in actual fact - has no rights and should be silenced.
Though the remaining prisoners at Gitmo are few and in most cases have verifiable records, denial of a fair hearing is all too typical of the current gangsterism of the wealthy and powerful and those who regard "whites" as a threatened minority.
I have a metaphor for all those who call themselves "Christian" and follow the materialism, victim blaming, hatred, and exclusion coming from the pulpit:
Would Jesus be put in Gitmo? It's all too likely!
35
@Susan Anderson
Amen, thank you.
10
The column mentions "a battle over the future of the Supreme Court that will play out when Judge Kavanaugh’s Senate confirmation hearing begins next week." What battle? No Republican cares about Kavanaugh's fitness for a place on the Supreme Court, so after the show-hearing it will happen.
18
@John B Nor does any Democrat care about his fitness as well. Both parties will approach this without thought. Fortunately this will result in Mr Kavanaugh being confirmed.
1
Thank you for bringing this to our attention. We have been so distracted by other issues, important and not. We deserve better.
15
There was a time when justices of outstanding legal intellect and a devotion to to the meaning of the constitution both in its words and its intended consequences to society as they knew it sat on the court. Where are the likes those such as John Marshall, Earl Warren, Louis Brandeis or Oliver Wendell Holmes, Jr. today? Are there no great judicial minds out there? Brett Kavanaugh, a conservative ideologue does not even come close.
38
What this horrible, shameful "prison" (which is really a concentration camp, with no lawful oversight, says about Kavanaugh, and all the other Bush people who participated in these crimes against humanity, is that he is a MISANTROPE, just like the people who support him. He is the author of most of the policies associated with capture of "enemy" combatants, and their illegal treatment, including torture. He has no place in our government, or any public situation, for that matter. Show us the documents! ALL the documents! And delay these hearings until Democrats have seen EVERYTHING. For Republicans to fail to serve the peoples' wishes on this matter, is to make their November election results even worse than they have feared. Now, the new majority should begin to look for ways to impeach one, or more, of our Supreme Court Justices. Frankly, I have been unable to understand how the Bush administration has escaped the international accusations, and indictments, of crimes against humanity. Maybe that's why they wanted to lure our allies into this illegal war, to make them all complicit. NO BRETT KAVANAUGH ON OUR SUPREME COURT!
35
Not exactly related to this article but I am puzzled by Kavanaugh's libertarian leaning while professing Catholicism.
8
@Dave Catholicism has become a political front like Evangelicalism. Religious naming appears on the resume and provides a certain automatic following, but says nothing about a candidate or nominee personally. I have reached the point of being suspicious of anyone who professes their religion in a secular context. Talk has never been cheaper than it is in America today. RIP John McCain.
19
It's comforting to know that Ms Greenhouse is still watching.
59
Just another hack, producing legal justification on demand, in the mold of Jonathan Yoo. During public hearings, Senators should ask him the age of the earth.
54
These are prisoners of war captured on the battlefield. They represented no nation-state. They have no civil rights under international law. They were not killed because they had intelligence value. Stop crying for them, please, just stop and forget these criminals.
2
@Chris McClure
A couple of critically important points:
1. We have never declared war in this case, so how can there be any "prisoner of war"?
2. The fact that they didn't represent a "nation-state" (true), makes it impossible for Congress to declare war.
3. How can they be considered criminals if they've never obtained due process?
Just locking them up and throwing away the key with no jurisprudence whatsoever is completely counter to our tradition, our Constitution, the Geneva Convention (if there were an actual war in the first place), and basic human decency.
101
@Chris McClure: i wish you weren't so harsh!
- some of those "prisoners of war" were picked up
in places where no "war" was ever fought.
- are they criminals bc someone high up said so?
did they stand any [un]fair trial besides waterboarding?
- does "they have no civil rights under international law"
mean "they have no rights, so stop caring!" period?
- they were not killed: bc some people THOUGHT or
had to make it LOOK LIKE they had intelligence value.
- how reliable is information obtained under torture?
°the world has long stopped being simple & easy.
°what abt saudi arabia's role in the terrible 9/11 attacks?
°what abt the saudis' destabilizing role in afghanistan etc.?
°what abt the global north's unquenchable thirst for oil?
btw: years ago, a german-born youth of turkish descent
was caught in the wrong place at the wrong time and
wound up in guantánamo. the US found him blameless.
yet, the german government just did not want him back.
after 5 unspeakably terrible years in hell on earth
he finally returned to germany and has managed to live
a relatively normal life - without taking revenge!
pretty remarkable, as far as i'm concerned.
11
@Chris McClure
Most were not captured "on the battlefield" and the point is that they may not be criminals. " The Center for Policy and Research at Seton Hall University Law School reviewed DoD data for the remaining 517 men in 2005 and"established that over 80% of the prisoners were captured not by Americans on the battlefield but by Pakistanis and Afghans, often in exchange for bounty payments."[34] The U.S. widely distributed leaflets in the region and offered $5,000 per prisoner. One example is Adel Noori, a Chinese Uighur and dissident who had been sold to the US by Pakistani bounty hunters. https://en.wikipedia.org/wiki/Guantanamo_Bay_detention_camp
7
Guantanamo should not have ever been used to hold "enemy combatants". We have spent money on incarcerating people for an indeterminate amount of time, depriving them of due process, and proving that America can be as inhumane as any regime of strongmen can be. We tortured people and learned nothing. We ruined others lives and had to relocate them to countries other than their own.
Bush and other politicians used our fears to justify creative ways around treating suspected terrorists as POWs. This problem was caused by Democrats and GOP affiliated politicians who invoked blind patriotism and fear to get what they wanted.
As Colin Powell said years ago: we break it, we buy it. Given the way our politics are dictating our laws, with fear and prejudice, I'm not surprised that Kavanaugh or any other judge would do what he did. Justice in America is blind if you are not rich. It's blind to innocence, blind to discrimination, and blind to the ways that being rich affords a more careful examination of the facts.
39
A brief summary of the Kavanaugh nomination to the Supreme Court by unindicted co-conpirator Donald Trump....
Donald Trump about Russian Collusion meetings:
"To the best of my knowledge I know nothing about that"
Brett Kavanaugh about GW Bush's prisoner torture program:
"That was not my department. To the best of my knowledge I know nothing about that"
Birds of a dishonest feather stick together.
53
A well thought out piece. A step further: A recent cover for The Economist shows Trump with the caption, "Above the Law". Following the news of his actions, clearly he thinks that he is above the law. Under Trump habeous corpus is being played out as children being kidnapped at the border, with no return, appeal, to being reunited with their parents--no intention or plan on the part of Trump and his henchmen to do that. On other fronts, he thinks that what appears to be repeated (alleged) lawbreaking in his former real estate deals and tax filings should not be subject to any investigation/scrutiny. Ditto payoffs to buy silence for his wrongdoing, campaign finance violations, conspiracy/collusion with a foreign power in an election, clear and intentional violations of the Emoluments Clause, and willful subversion of all kinds of regulatory rules and laws to please specific campaign donors (quid pro quo). Have I left any out? Oh yeah, incite violence and racial hatred--maybe not against the law in the U.S., but it should be. All in all, someone who thinks he is above the law.
So Kavanaugh may have ruled against habeous corpus, the outlandish violation that we are witnessing is that someone who clearly thinks he is above the law is allowed to appoint someone, even make the nomination, to the Supreme Court. And Kavanaugh's former "no indictment" postings dovetail nicely with Trump as a President who thinks himself above the law. So-called President is his best epithet.
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I believe John Roberts ruled against habeas corpus for prisoners at Guantanamo; perhaps the reason he was nominated for Supreme Court
11
Two things about this essay are notable. One, it casts a sharp light on the implicit bias of judges like Kavanaugh, recommended as they and he are by that fifth column of American political life -- the Federalist Society.
Second, Linda Greenhouse has to be commended for still thinking and writing about the tragic legacy of W's wars that is Gitmo. Please keep it up.
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Why is it so critical for the trumpublicans to move toward a government that has the ability to imprison with impunity, to deny habeas corpus?
To accomplish this the courts must be reconstituted to undermine or destroy 240 years of law.
When prisoners have no right to hearings protesting the legality of their incarceration, no right to trial to determine guilt or innocence, we are a dictatorship and a failed state.
Take a step back, connect the dots, and ask if the goal of putting Kavanaugh on the Court is in any way related to the mindless screaming "lock her up" at trumpublican rallies?
Political opponents, reporters, protesters, anyone working in any capacity for the government who does not kiss trump's ... ring ... could be arrested and jailed as 'enemies of the people".
Chilling, how quickly the rule of law is destroyed.
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And so the Supreme Court is where habeas corpus goes to die?...
This president puts the rule of law at risk. From emoluments to collusion he denies the primacy of law. and judicial branch independence. Truth, conscience, precedent and practice is trampled underfoot. And there will always be vested interests, ambitious camp followers and right wing fellow travelers to do his dirty work.
Trump lobbies Congress to allow him to dismiss Sessions for the sin of recusing himself from his collusion trial and findings of wrong-doing from money laundering to campaign finance fraud. Giuliani advises Romania to reign in its anti-corruption agency. The money changers rejoice. Habeas corpus withers.
Adjectives pile high demanding justice. But it is not illegal to be venal, ignorant, bigoted, xenophobic, racist, authoritarian, manipulative. It is not against the law to lie and spread untruths unless under oath. It is not against the law until it is.
How ironic that this president can persuade enough sycophants, vested interests and like minded drones to do his dirty work for him. That a Kavanaugh can emerge from the heap of moral and ethical mediocrities to hammer another nail into the polarized Supreme Court coffin. How ironic that this will entail the facade of screening and Congressional voting as if this were sufficient to tell right from wrong and carry on democratic traditions.
And none of it is against the law until it is. Habeas corpus included.
21
Habeas corpus is at the bedrock of our Anglo-Saxon judicial system. It is what keeps the County Sheriff from keeping your kid locked up until he whimsically decides to let him go. Overnight? A week? (A year?) Only a magistrate, forced by law, to justify rejection of a petition for habeas corpus keeps any one of us from being sent to the "house of many doors" at the whim of a judge with no fundamental respect for the law.
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@CPMariner
Yeah, I am sure lots of prisoners of war were successful with this strategy.
It's clear between Kavanaugh's actions here and in his other court opinions ruling for corporations rather than citizens' rights (I believe 86%?) and his restatements contrary to his beliefs as part of court action against President Clinton that a president IS above the law possibly always....that Kavanaugh is just the appointee McConnell and Trump wish: a man who rules against the great majority of citizens in this country.
(Just like Gorsuch, who ruled that a man leaving his truck to save his life was fair game to fire.)
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@Susan Thank you for reminding us of that infamous decision. It fits so well with current corporate-Republican thinking.
And I am still puzzled about Justice Kennedy’s sudden decision to retire. Was his son’s working for Deutsche Bank part of the decision?
5
The only rights of concern to some "conservative" judges is the right to carry guns, the right of corporation to influence politics, the right to discriminate on the basis of sexual orientation, and the rights of a fetus.
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Since Brett Kavanaugh was neither a member of nor the head of the CIA nor the FBI nor the Justice Department nor any U.S. uniformed military service that landed anyone in Guantanamo what he did as an federal appellate court judge is not relevant.
3
People love to talk and write about our great constitution and all of the guarantees for the rights of the individual. And that all sounds great on July 4th and other patriotic occasions. But it is like the "Declaration of Independence" where it says "All men are created equal." If you check you find out that means only white men who own property. In 1776 in most of the colonies, only white men with property could vote or be on a jury.
The right that the individual who is accused of a crime has is to hire a good attorney if he/she has the money. Justice in this country costs money. I know we have public defenders but would you be willing to risk your life and/or future on the ability of a public defender.
I suspect that Kavanaugh's view of rights depends very much on who is before him. I feel that he thinks corporations and big businesses have lots of rights; they are just rapped up in rights. But when it comes to the individual (especially a poor or dark-skinned) then the rights get to be few and far between and hard to find.
As I understand it most of the people at Guantanamo who file for habeas corpus are people who have never been accused of a crime. And many have been held for 15 years or more. They say they are too dangerous to turn loose but don't seem to know that they have committed a crime.
How does one defend, even with a good lawyer, when he/she doesn't know the crime for which they are accused?
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@Aubrey many public defenders are excellent attorneys, see, for instance, Philadelphia's new district attorney.
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@Bill Michtom I agree that there are some who are very good. But there are also some "horror" stories about public defenders who go to sleep during the trial. Maybe the bad ones are just here in the South. Thanks for your comment.
1
The question everyone should know the answer to is what does the choice of Kavanaugh say about how we get Supreme Court justices, during any presidency, rather than picking a particular judicial topic about a specific nominee.
Clearly, Kavanaugh was chosen because the Trump administration feels his decisions are likely to not only favor their policies, but also save the presidency from Robert Mueller's eventual report and criminal charges.
But look at the rest of the court? Are all the other judges who sit on it working in the interest of justice and the American people? Citizens United, McCutcheon v. FEC, voting rights, the 2nd Amendment, all are decisions that have had adverse impact on our nation - to the point where we can call ourselves an oligarchy and not a democracy. Adverse, to the point where thousands die each year thanks to the narrow-minded fiction that is Antonin Scalia's view of gun rights and what our founders wanted.
Kavanaugh is suspect based on his personal behavior and his rulings. The GOP withholding his voluminous record from Senate Democrats makes him even more suspect. Clearly, when Kavanaugh was vetted, someone decided that they'd power him through the process over the protests of a lame opposition.
Other nations have a jurisprudence system that is entirely staffed by civil servants. No judges are elected. That's what we need.
---
What Trump Did While We Looked Away
https://wp.me/p2KJ3H-2ZW
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@Rima Regas This ridiculous parroting of the falsehood that they GOP is withholding information is an absurdity that needs to stop. Kavanaugh was well vetted before his last appointment with support from a number of Democratic senators and has since written close to 300 opinions that give plenty of insight into his rulings. He has attended some of the best educational institutions in the world and has a stellar professional career. There is more then ample material to review as part of his confirmation process. The unhinged left is upset about what he *might* decide and wants to go so far back in his career only in the hopes of finding an early career skeleton in the closet or to delay the hearing until after the mid terms (which may not go they way you want anyway). He is one of 9 justices who decide cases, not the sole decision maker. Justice Kagan had no such body of material review given her lack of courtroom experience and she was appointed.
Kavanaugh is imminently qualified.
And you also have the Mueller investigation finding crimes, getting convictions and reaching the supreme court BEFORE he has issued his report. None of these things will happen, nothing approaches the level of an impeachable offense and Congress, let alone the Senate, will not impeach him.
You need to move on and find a suitable candidate (non socialist) to run to avoid another Trump presidency. All other energy is wasted.
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@Norville T Johnson
Do you have information that the rest of us aren't privy to? The National Archive is refusing to provide documents to Senate Democrats because the Senate majority is Republican.
Neither you or I get to determine for Senate Democrats whether what's "out there" is enough.
As for your assessment that there is no impeachable offense, you have no basis for it. What we do know, so far, points to there being much more.
As for moving on and finding the candidate of your choice, no thank you.
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@Norville T Johnson
Typo: imminently should have been eminently. I'm old and have some visual challenges.
1
"leaving an inmate count of 40, down from 780 at its peak"
There was always an additional secret population of prisoners there. We found out about a couple of them, and learned there was a whole section of Guantanamo for them. Who was in there remains secret.
16 years without even a charge is an outrage. The original excuse was War on Terror, ignoring that these people were not Prisoners of War either, not treated according to those rules either. Dubya just said that we had to await developments. 16 years is a lot of waiting. We are not really waiting, we are just not ever doing anything.
They are either PoW's or they are criminals. Either treat them as PoW's, or charge them as criminals. "Don't rush us" doesn't work after 16 years.
This is just open defiance of our own laws. We made our laws for good reasons, to protect ourselves and our ideals, the very things for which we fight.
"Guantánamo has always been a mirror that reflects back on ourselves."
Yes, and there is a lot more in that mirror than just Brett Kavanaugh. If that is all the attention it gets, then Justice Kennedy will be right in his dissent. It is about separation of powers, and about rule of law, in their fundamentals.
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It strikes me that if Mr. Kavanaugh were a gentleman, not to mention being a person of just plain common sense, he would refuse Trump's nomination as a judge on the Supreme Court at this time. As a judge on the Supreme Court he will forever be tainted with the connection between himself and Trump. In any case, he should at least indicate that his case should be put off until after the November elections. I take it as a given that if nominated and a case against Trump comes before the court, he would recuse himself.
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@Cristino Xirau I wish you were right but he would not be expected to recuse himself unless he had dealt previously with specific case that came before the Court. Just having ruled on an issue does not usually require a recusal. I don’t know if there is any precedent for a newly appointed justice to do so anyway when he/she has ruled on a case with essentially the same issue.
@Cristino Xirau
Take nothing as given in the present governmental (which includes the three branches) situation.
Kavanaugh, like many judges on the right, follow the constitution until it does not meet their needs.
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And Judges on the left believe in strict following of the Constitution.
5
When people go to prison as a result of being unable to afford adequate legal representation which the state has kept inadequate by underfunding public defenders, a situation exists that justices should declare unconstitutional. When lack of resources makes it reasonable for people to accept plea bargains whether they are innocent or guilty of the particular crime with which they are charged, a situation exists that justices should declare unconstitutional.
We argue about a few cases at Guantanamo, with somewhat adequate funding for both sides. But this can be seen as a successful distraction so we do not have to notice or deal with what is probably hundreds of thousands of cases of fairly blatant unconstitutionality. Such is the nature of our love of the rights enshrined in the Constitution and our respect for the document that enshrines them. Sad.
41
The Justices of yesteryear
Are no longer with us I fear
And Brett Kavanaugh
Does not view the law
With habeas corpus as dear.
He'd protect the President's back
Perhaps permit use of the rack
When torture was needed
Insistence not heeded
The prisoner's skin color, black?
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@Larry Eisenberg
Okay, Larry: This is your new best! Thank you!
8
Thank you for keeping this issue in front of us, particularly now, when the stakes are so high.
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Another cogent column, Ms. Greenhouse. Unfortunately however, it only adds one more reason to fear for the future of our Country.
I'd love to blame this on Trump, but as we all know, in this case the Republican shredding of the Government our Founders envisioned predates him at least as far as McConnell's blatant and UnConstitutional denial of Obama's right to propose Garland.
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@Brian Alas, Ms. Greenhouse, if only you were a member of the Supreme Court.
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@Brian, it goes much farther back than that. It goes back to William F. Buckley's racist hypocrisy and to the establishment of right-wing propaganda-writing "think tanks" like the Heritage Foundation.
18