sunny.png
Wednesday December 11th, 2019 8:28AM

Kavanaugh's support for surveilling Americans raises concern

By The Associated Press
Related Articles
  Contact Editor

CINCINNATI (AP) — Supreme Court nominee Brett Kavanaugh has frequently supported giving the U.S. government wide latitude in the name of national security, including the secret collection of personal data from Americans.

It's a subject Democrats plan to grill Kavanaugh about during his confirmation hearings scheduled to begin next Tuesday. Beyond his writings as an appeals court judge, some senators suspect Kavanaugh was more involved in crafting counterterrorism policies during the George W. Bush administration than he has let on.

Kavanaugh stated in past congressional testimony that he wasn't involved in such provocative matters as warrantless surveillance and the treatment of enemy combatants in the years immediately after the Sept. 11, 2001, terrorist attacks.

But legal experts say he could shift the court on national security issues, if he is confirmed to replace retired Justice Anthony Kennedy.

Stephen Vladeck, a University of Texas law professor whose expertise includes national security and counterterrorism, cites opinions he says show Kavanaugh "is a lot less willing (than Kennedy) to look at international law as a relevant source of authority and constraint." He said on matters such as Guantanamo detention, Kavanaugh is "much more deferential to the executive branch in this context than Kennedy would have been."

Sen. Rob Portman, R-Ohio, calls Kavanaugh "incredibly well-qualified." The former U.S. trade representative and White House budget director knows Kavanaugh from their time together in the Bush administration. He said Kavanaugh "believes strongly in the Constitution" and the Bill of Rights.

"I think he's in the mainstream with regard to these issues, and frankly, I don't think it's a difference with any meaning between where he is and where the court is currently," Portman said.

Democrats facing an uphill battle in blocking Kavanaugh's nomination have focused less on his judicial counterterrorism record than whether he misled senators about his role in Bush policies while testifying in 2006 confirmation hearings.

Illinois Sen. Dick Durbin and Vermont Sen. Pat Leahy are among Democrats who want to see more records from Kavanaugh's White House days, saying news media accounts after he was seated on the U.S. Court of Appeals for the District of Columbia raised new questions.

White House spokesman Raj Shah said Durbin has been doing the misleading by taking Kavanaugh's answers out of context.

"As several colleagues have stated, and Judge Kavanaugh accurately said in his 2006 testimony, he was not involved in crafting legal policies that formed the rules governing detention of combatants," Shah said in an emailed statement.

After meeting recently with Kavanaugh, Durbin said the judge "acknowledged that he was involved in conversations involving enemy combatants."

Shah responded with a tweet saying Kavanaugh was truthful, and that the conversations Durbin referred to "were about public litigation, not the legal framework or policies that formed the rules governing detention of combatants."

Kavanaugh's confirmation got past a potential obstacle when libertarian-leaning Sen. Rand Paul, R-Ky., endorsed him last month.

Paul had cited Kavanaugh's 2015 defense of the National Security Agency's widescale secret collection of telephone metadata — records of callers and recipients' phone numbers and times and durations of the calls. But after meeting with Kavanaugh, Paul said he's confident Kavanaugh will "carefully adhere to the Constitution and will take his job to protect individual liberty seriously."

The NSA program didn't include capturing conversations themselves, and Kavanaugh wrote that it served "a critically important special need — preventing terrorist attacks on the United States ... In my view, that critical national security need outweighs the impact on privacy occasioned by this program."

Larry Klayman, founder of the conservative group Freedom Watch and lead plaintiff in the NSA case, said Kavanaugh approved what a U.S. district court judge had called government use of "almost Orwellian technology."

Kavanaugh defended the NSA program in an opinion attached to a procedural ruling in which he and his colleagues agreed not to rehear the case, so there was no pressing need for him to weigh in .

University of Louisville law professor Justin Walker, a former Kavanaugh clerk, said that's not unusual for the judge. For example, Kavanaugh added his opinion to a procedural ruling in a case that led to a Supreme Court decision for a drug suspect who had a police-placed GPS tracker on his car.

The high court found in USA vs. Antoine Jones that Jones' Fourth Amendment rights were violated, with a majority opinion that incorporated Kavanaugh's observation that police intruded on the defendant's personal property: his car.

"I've been surprised that his one short opinion (in Klayman) has not been seen in a broader context with more perspective," Walker said, adding that when senators study Kavanaugh's complete record on civil liberties, "they're going to like what they see."

But Cindy Cohn, executive director of the Electronic Frontier Foundation, a San Francisco-based organization dedicated to digital privacy rights, worries that "he has a very broad view of the government's ability to do mass surveillance and specifically in the context where the government is claiming national security."

Cohn has pursued a lawsuit alleging illegal NSA surveillance of "millions of ordinary Americans," among cases she said could eventually reach the Supreme Court. She questions whether Kavanaugh supports "real checks and balances on the power of the executive branch" on privacy issues.

Kavanaugh discussed judicial restraint on national security in an 87-page 2010 opinion. That one went against a Yemeni citizen U.S. forces captured in Afghanistan.

"Put simply, Congress knows how to limit the executive's authority in national security and foreign policy; there is no reason or basis for courts to strain to do so absent such congressional direction," Kavanaugh wrote.

Vladeck pointed to such cases as Kavanaugh's 2011 ruling for turning over a U.S. citizen linked to al-Qaida terrorism in Iraq to Iraqi authorities the man said were likely to torture him, and in 2009 joining in a 2-1 vote against plaintiffs who wanted to sue private contractors they accused of beatings, dog attacks and other abuse at the notorious Abu Ghraib prison in Iraq.

There are still 40 detainees at the Guantanamo Bay, Cuba, U.S. naval base, with the possibility of more .

In a 2013 lecture , Kavanaugh talked about his appeals court's rulings in cases involving Guantanamo detainees and counterterrorism, saying he disagreed with people who believed "the courts should be creating new rules to constrain the executive — that this new kind of war requires new rules created by the courts."

"He's incredibly smart; he's a thoughtful and thorough judge," said Vladeck. "He just has pretty exceptionally conservative views about the role of the federal courts in the kinds of cases that I work on."

___

Find AP's reporting on the Kavanaugh nomination at https://apnews.com/tag/Kavanaughnomination

___

Follow Dan Sewell on Twitter at http://www.twitter.com/dansewell

  • Associated Categories: Associated Press (AP), AP National News, AP Online National News, Top General short headlines, AP Online Headlines - Washington, AP Online President, White House, advisers News, AP Online Congress News, AP Online Supreme Court News
© Copyright 2019 AccessWDUN.com
All rights reserved. This material may not be published, broadcast, rewritten, or redistributed without permission.
Gunman 'clearly targeted other gamers' at Florida tournament
A Florida sheriff says a gunman specifically targeted fellow gamers at a Jacksonville tournament
12:55AM ( 11 minutes ago )
Kavanaugh's support for surveilling Americans raises concern
Senate Democrats plan to grill Supreme Court nominee Brett Kavanaugh about his national security views during confirmation hearings scheduled to begin next week
12:36AM ( 30 minutes ago )
Support builds for plan to rename Senate building for McCain
A proposal to rename the Russell Senate Office building after Arizona Sen. John McCain appears to be gaining bipartisan support, but success is far from assured
12:33AM ( 33 minutes ago )
Associated Press (AP)
United Airlines flight evacuated after blown tires in Denver
Passengers and crew on a United Airlines flight were bused to a concourse at Denver International Airport because of two blown tires
12:00AM ( 1 hour ago )
Tropical Storm Lane damage assessment under way
Hawaii officials are assessing damage from Tropical Storm Lane, which dumped the third most rain from a tropical cyclone in the United States since 1950
11:37PM ( 1 hour ago )
1, done: Halep 1st No. 1 to lose 1st Open match; Serena wins
Simona Halep became the first No. 1-seeded woman to lose her opening match at the U.S. Open in the professional era; Serena Williams made winning return
11:31PM ( 1 hour ago )
AP National News
Official: Fireworks, cigarettes may have caused deadly blaze
Investigators trying to determine the cause of a weekend fire at a Chicago apartment building that killed seven children and two adults are searching a porch area for evidence of fireworks or smoking materials
11:22PM ( 1 hour ago )
Shooting killed gamers seeking money for college, family
Florida shooting killed gamers who were seeking money for college, family
11:04PM ( 2 hours ago )
The Latest: Twitter abuzz over ad featuring Serena Williams
The Latest: Twitter abuzz over ad featuring Serena Williams
11:01PM ( 2 hours ago )
AP Online National News
Iran asks UN's highest court to suspend US sanctions
Iran warns that re-imposed U.S. sanctions would cripple its economy and plunge the volatile Mideast deeper into crisis as it called on the United Nations' highest court to suspend the Trump administration's economic pressure on Tehran
10:48PM ( 2 hours ago )
Plans on making untraceable 3D guns can't be posted online
A U.S. judge says the "unique danger" of untraceable and undetectable 3D-printed guns led him to block online plans on making the plastic weapons
10:47PM ( 2 hours ago )
The Latest: Anderson comes back, wins five-setter at US Open
The Latest: Anderson comes back, wins five-setter at US Open
10:01PM ( 3 hours ago )
Top General short headlines
Former Vietnamese jailer says he respected late Sen. McCain
The former Vietnamese colonel who ran the "Hanoi Hilton" prison where late Sen. John McCain was held for five years says he respected his former inmate and feels sad about his death
10:43PM ( 2 hours ago )
Trump welcomes president of Kenya to the White House
President Donald Trump welcomes the president of Kenya to the White House
10:37PM ( 2 hours ago )
The Latest: Canadian official heading to US for trade talks
Canadian Foreign Minister Chrystia Freeland is cutting short her diplomatic trip to Europe to head to Washington for trade talks with the United States
9:14PM ( 3 hours ago )
AP Online Headlines - Washington
A Democratic governor in Wyoming? It could happen _ again
Democrats eye best chance in years of reclaiming Wyoming governor's office
6:20PM ( 1 day ago )
A subdued Zimbabwe set for Mnangagwa's inauguration, again
A subdued Zimbabwe readies for Mnangagwa's inauguration after bitterly disputed election
4:53AM ( 1 day ago )
Zimbabwe opposition rejects ruling and 'false' inauguration
Zimbabwe opposition rejects court ruling and 'false' inauguration, vows peaceful protests
12:55PM ( 2 days ago )
AP Online President, White House, advisers News
The Latest: McConnell pays tribute to McCain on Senate floor
Senate Majority Leader Mitch McConnell paid tribute to John McCain by recalling their own legislative battles while echoing the late senator's belief that there's more that unites than divides Americans
4:49PM ( 8 hours ago )
The Latest: White House flag lowered again for McCain
Two days after Sen. John McCain's death, President Donald Trump says he respects the senator's "service to our country"
4:16PM ( 8 hours ago )
The Latest: Black fabric drapes John McCain's Senate desk
The Senate has draped John McCain's desk in black fabric and placed a vase of white roses on top
3:27PM ( 9 hours ago )
AP Online Congress News
Pence: Dems resorting to 'obstruct and oppose' on judges
Pence says 'advise and consent' has turned into 'obstruct and oppose' on Kavanaugh and other judicial nominees
5:24PM ( 3 days ago )
Decades of 'Fancy meeting you here!' for Gorsuch, Kavanaugh
Justice Neil Gorsuch and Supreme Court nominee Brett Kavanaugh share a history that goes back to high school
5:35AM ( 3 days ago )
Republicans tend to shrug off accusations against Trump
Republicans shrug off accusations against Trump in Cohen case, wait to see what develops
12:06AM ( 5 days ago )
AP Online Supreme Court News
Gunman 'clearly targeted other gamers' at Florida tournament
A Florida sheriff says a gunman specifically targeted fellow gamers at a Jacksonville tournament
12:55AM ( 11 minutes ago )
Support builds for plan to rename Senate building for McCain
A proposal to rename the Russell Senate Office building after Arizona Sen. John McCain appears to be gaining bipartisan support, but success is far from assured
12:33AM ( 33 minutes ago )
McCain had a 'wicked' wit that he often aimed at himself
McCain's "wicked" wit was often aimed at himself during his long Washington career
12:33AM ( 34 minutes ago )
McCain's death shadows Republican primary in Arizona
Death of Sen. John McCain is shadowing Tuesday's primary contests in Arizona
12:25AM ( 42 minutes ago )
After criticism, Trump honors McCain's service to country
Following criticism from veterans and others, Trump breaks his near-silence to recognize McCain's "service to our country"
12:21AM ( 46 minutes ago )