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The Kavanaugh Cover-up? Role in Torture & Domestic Spying Policy Remains Unknown as Papers Withheld

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Judge Brett Kavanaugh’s Supreme Court confirmation hearing enters its third day today. On Wednesday Capitol Police arrested 73 people protesting Kavanaugh’s nomination. The protests began almost immediately when Senate Judiciary Committee Chair Chuck Grassley tried to start the hearing. Protesters included Women’s March organizers from 26 states. Among them was a teenager who stood on a chair and said, “I’m 18, and I’m here for the youth of the country. You’re ruining my future.” We speak to Hina Shamsi, director of the American Civil Liberties Union’s National Security Project, and Vince Warren, executive director of the Center for Constitutional Rights.

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This is a rush transcript. Copy may not be in its final form.

NERMEEN SHAIKH: Judge Brett Kavanaugh’s Supreme Court confirmation hearing enters its third day today. On Wednesday, Capitol Police arrested 73 people protesting Kavanaugh’s nomination. The protests began almost immediately when Senate Judiciary Committee Chair Chuck Grassley tried to begin the hearing.

PROTESTER: … and protects the rights of people with disabilities, of women! We need to protect people of color!

SEN. CHUCK GRASSLEY: Yesterday was just the opening statements. It was only—it was only our time as committee members—

PROTESTERS: [Inaudible]

SEN. CHUCK GRASSLEY: —that we wasted on disruption and disorder over procedural matters. But today is different.

PROTESTER: Mother Earth! Mother Earth!

NERMEEN SHAIKH: Protesters included Women’s March organizers from 26 states. Among them was a teenager who stood on a chair and said, quote, “I’m 18, and I’m here for the youth of the country. You’re ruining my future.”

When questioned about judicial independence, Kavanaugh said, quote, “No one is above the law in our constitutional system.” But he refused to answer Senator Dianne Feinstein about whether a president has to respond to a subpoena.

SEN. DIANNE FEINSTEIN: My time is going to run out very quickly. Let me just ask you this: Can a sitting president be required to respond to a subpoena?

BRETT KAVANAUGH: So that’s a hypothetical question about what would be an elaboration or a difference from U.S. v. Nixon's precise holding. And I think, going with the Justice Ginsburg principle—which is really not the Justice Ginsburg alone principle, it's everyone’s principle on the current Supreme Court—and as a matter of the canons of judicial independence, I can’t give you an answer on that hypothetical question.

AMY GOODMAN: Judge Kavanaugh also faced questions on gun control and Roe v. Wade, which he called, quote, “an important precedent of the Supreme Court that has been reaffirmed many times.” Senator Lindsey Graham asked for clarity about Kavanaugh’s outlook on the use of military force after the 9/11 attacks.

SEN. LINDSEY GRAHAM: So when somebody says post-9/11 that we’ve been at war and it’s called the war on terrorism, do you generally agree with that concept?

JUDGE BRETT KAVANAUGH: I do, Senator, because Congress passed the Authorization for Use of Military Force, which is still in effect.

AMY GOODMAN: For more, we’re joined by two guests here in New York. Hina Shamsi is the director of the American Civil Liberties Union’s National Security Project. She recently wrote a piece titled “On National Security, Kavanaugh Has a History of Extreme Deference to the President.” And Vince Warren is executive director of the Center for Constitutional Rights, which joined more than 180 groups in a statement opposing Judge Kavanaugh’s confirmation, saying he’s an ideological extremist who lacks the fair-mindedness necessary to serve a lifetime appointment on the Supreme Court.

We welcome you both to Democracy Now! Vince, let’s begin with you, this letter that you wrote. Why are you so deeply concerned about Judge Kavanaugh?

VINCENT WARREN: If you look back at Judge Kavanaugh’s record, what you see is someone who is deeply, deeply hostile towards the rights that flow to people. And Republicans will talk about him as a centrist, as someone who’s fair, as somebody who follows the law, but they’re looking at it the wrong way. If you look at this particular nominee on the spectrum of are they in favor of presidential and state power and corporate power versus are they in favor of people power, almost invariably, he will go as deeply as he can towards state and corporate power, whether we’re talking about reproductive rights, racial justice, voting rights. It’s a disaster. And I think that it’s an important time for us, because with Anthony Kennedy vacating the seat, we’re really looking at several decades of a very hard-right Supreme Court that’s going to be a real challenge for the legal organizations that are trying to vindicate the rights of the people.

NERMEEN SHAIKH: And, Hina, I mean, in addition to what Vince pointed out about the fact that Kavanaugh tends to side with state and corporate power, your piece is called “On National Security, Kavanaugh Has a History of Extreme Deference to the President.” So talk about your concerns about him with respect to the positions that he’s taken in cases he’s been involved in on national security issues.

HINA SHAMSI: So, the ACLU, as a matter of policy, doesn’t take positions for or against Supreme Court nominees, but we do think it’s incredibly important for Congress and the public to be informed about their record. And we analyzed Judge Kavanaugh’s national security cases and found that he has extreme deference to presidential claims of unchecked authority in the name of war and national security, a hostility to enforcing constraints imposed by binding international law on government action—again, in the name of war and national security—and an unwillingness to recognize judicial remedies for individuals who have been harmed by constitutional and human rights violations.

AMY GOODMAN: Speaking of human rights violations, Judge Kavanaugh said under oath during his 2006 confirmation to the appellate court in D.C. he’s not involved in the Bush administration’s rules governing detention of combatants. Senator Dick Durbin pushed back on this claim at Wednesday’s hearing, but Kavanaugh still insisted his testimony was accurate.

SEN. DICK DURBIN: You were involved in the discussions about access to counsel for detainees. You confirmed this during the meeting we had in my office, and there are multiple media reports, as well. You were involved in discussions regarding detained U.S. combatants Yaser Hamdi and José Padilla. You confirmed that in our meetings, and there are emails that support that fact. You were involved—and this is one I want to be specific about—you were involved with President Bush’s 2005 signing statement on Senator John McCain’s amendment banning cruel, inhuman and degrading treatment of detainees, and you confirmed that in the meeting. There were no exceptions in your answer given to me in 2006, not for litigation or detainee access to counsel or the McCain torture amendment. So, if those three, based on the limited documents which we’ve been given, are obvious, what were you trying to tell me here? Did you really disclose accurately your role?

JUDGE BRETT KAVANAUGH: Yes. I understood the question then and my answer then, and I understood—

PROTESTER: Disabled people have human rights! We’re allowed to make our own medical decisions!

JUDGE BRETT KAVANAUGH: I understood the question then and the answer then, and I understand the question now and the answer now to be 100 percent accurate.

AMY GOODMAN: So, that was Judge Kavanaugh. When he was asked again about his role in the Bush administration’s torture program, the torture report released by Senator Feinstein showed he was not aware of the program.

JUDGE BRETT KAVANAUGH: The policies that are reflected and described in Senator Feinstein’s extensive, thorough report were very controversial, as you know, Senator. The enhanced interrogation techniques—

SEN. ORRIN HATCH: Right, right.

JUDGE BRETT KAVANAUGH: —and the legal memos that were involved in justifying some of those techniques also were very controversial when they were disclosed in 2004. And I was not involved—I was not read into that program, not involved in crafting that program nor crafting the legal justifications for that program. In addition to Senator Feinstein’s report, the Justice Department did a lengthy Office of Professional Responsibility report about the legal memos that had been involved to justify some of those programs. My name is not in that report, Senator, because I was not read into that program and not involved.

AMY GOODMAN: So, that’s Judge Kavanaugh speaking at the hearing, which was continually interrupted by protesters decrying everything from human rights and many other issues. Hina Shamsi, can you translate this all for us? What do we know, and what don’t we know, about Kavanaugh’s involvement in these decisions during the Bush administration, whom he served for a number of years? What documents have been released? What haven’t? What’s on the record? And what about what he actually was willing to admit?

HINA SHAMSI: You know, disappointingly, little is on the record. And part of the reason for that is that, as Democratic senators have pointed out, they have—they do not have the majority of the records from Judge Kavanaugh’s time in the White House. He held two different positions in the White House, and they don’t have the majority of records from that time. And I think one important thing to point out just about—

AMY GOODMAN: Because?

HINA SHAMSI: Because they haven’t been produced. They’ve been withheld on claims of privilege. There’s a set of unusual and unprecedented refusals to provide information. And that’s a problem because we need Congress to exercise its authority here, and the public also needs to know about this man who is set to hold a position that will be so important. But one important clarification that Senator Feinstein issued after Judge Kavanaugh talked about not being mentioned in the torture report—and Senator Feinstein talked about how limited the scope of the torture report was because the Senate Intelligence Committee didn’t get White House records, and so it wouldn’t have discussed any role that Judge Kavanaugh might have played.

But if I may, what we do know is his hostility to providing—to opening the courthouse doors to victims of human rights abuses, like torture, in case after case, including one where we represented—the ACLU represented—a man who was detained and abused by FBI agents abroad, three different countries in the Horn of Africa over a period of months, secret proxy detention, and the panel opinion in the D.C. Circuit refused to recognize that he could exercise his right to a remedy in court, because, they said, it was in the context of a counterterrorism investigation overseas. And Judge Kavanaugh went out of his way to write a separate opinion saying that there shouldn’t be a remedy recognized for any kind of these investigations overseas. So that, in itself, is a problematic opinion.

NERMEEN SHAIKH: Well, can I ask you about one of the cases that you raise in your piece, the 2010 Al-Bihani case, what it said? You mentioned international law, his position on the jurisdiction of international law in the U.S. If you could speak specifically about what the impact of his position was on the AUMF, the Authorization for Use of Military Force, saying that it’s not limited by principles of international law?

HINA SHAMSI: Yes. So, in that case, Al-Bihani, and in other cases, what Judge Kavanaugh has shown is his hostility to binding international law, including the Geneva Conventions, as a constraint on government action, whether by president or the Congress. And in his view, courts shouldn’t construe congressional statutes, for example, with a reference to international law’s constraints, unless Congress specifically says they should. And what that does—that’s outside of the judicial mainstream and outside of long-standing doctrine where the Supreme Court has said that, in fact, courts should ensure that they construe domestic law consistent with international law unless Congress says otherwise. So, that’s really turning a standard on its head. And Judge Kavanaugh’s opinions, which would argue for presidential authority to detain prisoners even without congressional authorization and other constraints, that would give the president extreme power, unchecked power. And that’s a problem.

AMY GOODMAN: I want to turn to Senator Patrick Leahy questioning Judge Kavanaugh during Wednesday’s hearing about whether he lied during previous sworn testimony about his knowledge of warrantless surveillance.

SEN. PATRICK LEAHY: When you were in the White House, did you ever work with John Yoo on the constitutional implications of any warrantless surveillance program?

JUDGE BRETT KAVANAUGH: Well, I can’t—I can’t rule that—right in the wake of September 11th, it was all hands on deck on all fronts.

AMY GOODMAN: Senator Patrick Leahy questioning Judge Kavanaugh during the hearing. I also want to say that Leahy tweeted yesterday—the senior senator from Vermont—”Between 2001 and 2003, Republican senate staffers hacked into and stole 4,670 files on controversial Bush judicial nominees from 6 Democrats, including me,” Leahy tweeted. He went on. “This scandal amounted to a digital Watergate, not unlike Russia’s hacking of the DNC. The ringleader worked closely with #Kavanaugh in pushing these controversial nominees. Kavanaugh testified he had no reason to suspect anything 'untoward.'” He said, “Today I began confronting him with the many reasons why he would have known there was something deeply wrong here.” So there are two different issues. One is the surveillance, and if you could respond to that, Vince Warren?

VINCENT WARREN: Absolutely. You know, we have to remember that back right after 9/11, as Judge Kavanaugh said, in terms of the fog of war, there was a massive surveillance program that began here in the United States. And the Center for Constitutional Rights, the ACLU and others had litigated, and continue to litigate, in various ways some of those cases. What we’re looking at is—the question here is whether he—what his involvement was in that massive surveillance program.

And I think what’s deeply troubling is, then as now, we have not gotten any clear on-the-record answers about high-level or even low-level officials’ participation in these programs, that they are always pushing the question aside. And I think this is a really key issue, because now we have a Supreme Court nominee who arguably played a role in facilitating, in thinking up, in moving forward some of the spying programs, which courts have found to be deeply problematic and unconstitutional. And I think that’s relevant for Congress to be able to determine whether this is a viable nominee to sit on the Supreme Court.

It is likely that—under this administration, that we’ll be seeing similar types of activities, even perhaps ones that the courts have said were not a problem, and it might give this administration a second bite at the apple, for some of these questions.

NERMEEN SHAIKH: Hina, could you also respond to that, what we know of Kavanaugh’s position on mass surveillance in the context of the 2013 Snowden revelations, and where he stood relative to other judges on the D.C. Circuit on that question?

HINA SHAMSI: Absolutely. So, in 2015, Judge Kavanaugh issued a decision that he went out of his way to analyze. It wasn’t joined by any other judge on the D.C. Circuit, and it was in a case that arose out of Edward Snowden’s disclosures in 2013 that the government, that the NSA, had been conducting a bulk surveillance program of Americans’ phone records.

And Judge Kavanaugh defended that as constitutional. He did that in a couple of different ways that are problematic. One, he argued that the bulk collection program, under Section 215 of the PATRIOT Act, did not even amount to a search under the Fourth Amendment, because it involved collection of Americans’ phone numbers, in essence, as opposed to the contents of their call. But in doing so, he relied on a singularly inapt 1970s case that involved the Supreme Court upholding warrantless collection of an individual criminal suspect’s phone records over a limited period of time—three days. And that is a very different context than a bulk program collecting phone records of millions of Americans. He also said that even if the Fourth Amendment were to apply, the search would be reasonable, because claims of national security outweighed the impact on individual Americans’ privacy.

AMY GOODMAN: Can you talk about the significance of his positions in the Bush White House, what it means to be in the White House Counsel’s Office, what it means to be staff secretary, Hina? Why this is so key and the fact that well over 100,000 documents have not been released is so significant?

HINA SHAMSI: Well, you know, we—those are significant positions in the White House at a time when the Bush administration was carrying out some of its most rights-abusive policies and programs in the post-9/11 era. And what we don’t know is the extent to which Judge Kavanaugh had a basis for participating or whether if, as he seems to have conveyed this, he was essentially acting as traffic cop without weighing in on the substance of opinions. But what Congress doesn’t have and what the public doesn’t have is the records from that time in order to be able to know for sure one way or the other.

VINCENT WARREN: I would just want to add that in the White House counsel context, that anybody that works in a law office knows that these are not solitary—where you don’t sit in your office and don’t tell anybody about what you’re doing. These are consultative processes, and people will go to different other folks and say, “What do you think of this concept? How should I address this question?” So, just by virtue of the fact that his name doesn’t appear necessarily on memos doesn’t mean that he didn’t have an involvement, and particularly in creating the germ of what the legal theory is going to be that they’re putting forward.

AMY GOODMAN: And it also means a lot of people know what his views are on these issues.

VINCENT WARREN: Absolutely.

AMY GOODMAN: Let’s turn to Judge Kavanaugh responding to a question about Roe v. Wade at the confirmation hearing.

JUDGE BRETT KAVANAUGH: One of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years, as you know, and most prominently, most importantly, reaffirmed in Planned Parenthood v. Casey in 1992.

AMY GOODMAN: Judge Kavanaugh at his hearing, in one of the few moments he wasn’t interrupted, at that second, by someone being taken out. There were more than, what, 66 protesters in the room, seven protesters outside, who were arrested. But, Vince Warren?

VINCENT WARREN: Yeah. And just on the protest note, in listening to him trying to respond and hearing people being dragged out of the chamber, I mean, that’s what our democracy sounds like. It was an extraordinary moment, and I think it was quite good. And frankly, I think that the nominees need to be a little rattled, particularly when they’re giving answers like this one.

Senator Feinstein asked him point blank about his view—prior to this—about his view about women being harmed and women dying and women being killed, and asking what his view was on that, and he gave this very pat answer, which is, of course, “Everybody knows that Roe v. Wade is important precedent.” I’m not sure, when he was talking about Planned Parenthood v. Casey as being precedent, on precedent—I’m not sure what that means.

But what he didn’t say is he didn’t say that he will uphold either of those two precedents. He recognized that they were important. He didn’t say that he recognized that women are in jeopardy if they don’t have access to those rights. And he also didn’t say that the state could be constrained in their denial of those rights in any particular way. So it was a very artful nonanswer, that was, you know, troubling and should continue—should not give anybody any sense of peace around that question.

NERMEEN SHAIKH: Well, I want to go to another issue that people have raised concerns about. At Wednesday’s confirmation hearing, Vermont Democratic Senator Patrick Leahy asked Judge Kavanaugh whether Trump has an absolute right to pardon himself.

JUDGE BRETT KAVANAUGH: The question of self-pardons is something I have never analyzed. It’s a question that I’ve not written about. It’s a question, therefore, that’s a hypothetical question that I can’t begin to answer in this context as a sitting judge and as a nominee to the Supreme Court.

NERMEEN SHAIKH: Vince, can you respond to that, whether Trump has the right to pardon himself, and why that’s especially significant?

VINCENT WARREN: Well, it’s an important issue legally, because, actually, there are folks that disagree on whether the president can or cannot. So, while I don’t agree with Judge Kavanaugh on virtually anything else that he said, I think that’s actually a reasonable answer to say that “I haven’t researched that question.” It is novel, no one has raised it before. And it’s not necessarily something that you would want to have answered here.

But here’s what he should have said. He should have said that that’s an open question. I would look into that very, very seriously, if that issue gets raised. And I would, frankly, find it troubling if we did live in a republic where the president had such power that he could commit crimes and then pardon himself for doing them, at least in terms of the federal crimes. I mean, that’s, I think, the answer that I would like to hear, that of course I would never hear from a hearing like that, but I think that’s the right way to analyze that question.

And why it’s important is because we are more likely than ever to see that factual scenario go from the hypothetical, that he had been talking about in this hearing, to reality. And we might be facing that question in the next couple of years.

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