An Illegitimate Supreme Court Accelerates the Decline That Began With Gitmo
The American judiciary is in crisis
Amid the emotional hubbub over the predictable confirmation of Brett Kavanaugh to the U.S. Supreme Court, there has been a largely overlooked casualty. The American judiciary.
It’s not the end result alone — his addition to the highest bench in the land where he will sit for life — that promises to damage the country, but the unprofessional, procedurally irresponsible way his circus-like hearings were held that dealt a blow to the possibilities for justice in America, a blow from which it may prove hard to recover.
Sen. Susan Collins acknowledged the damage the hearings wrought, even if she misunderstood the cause. Delivering her massively disappointing decision to vote yes on Kavanaugh, Collins reflected on what she saw as the passion that overrode the presumption of innocence and expressed “worry” that such behavior would lead to “a lack of public faith in the judiciary.”
Though wrong in blaming the Democrats for those passions, her conclusion was otherwise spot on. This confirmation has underscored and enhanced the fragility of justice in America, at least as a reflection of law, decency, honesty, transparency and fairness.
Surprising as this derailment of justice might have seemed, it echoed — and may, in fact, have reflected — another long-unspooling 21st-century American degradation of justice. The proceedings created to try those terrorism suspects locked away in the offshore detention center at Guantánamo Bay, Cuba, pivoted away from many of the country’s legal and moral principles.
But as a prelude to understanding the harm that the Kavanaugh confirmation process caused, think for a moment about the fundamental premises underlying the Supreme Court and so the American judiciary. The Founding Fathers envisioned it as a body chaired by judges whose professional responsibility was, as Alexander Hamilton wrote in Federalist No. 78, to be “faithful guardians of the Constitution.”
Toward that end, the Court was to stand independent from politics and the other two branches of government. That idea of judicial independence was, in the oft-quoted words of Chief Justice William Rehnquist, “one of the crown jewels of our system of government.”
It’s apparent that both Kavanaugh and the committee before which he testified betrayed the goals of justice laid out in that foundational period by violating several major elements of judicial reasoning and procedure. In the process, they helped introduce Gitmo-style justice to the American legal system. Below are four ways in which the committee compromised longstanding aspects of American jurisprudence and justice.
Through it all, both supporters and opponents of Kavanaugh claimed that his congressional hearings did not constitute the equivalent of a courthouse. Not true. Throughout those proceedings, the Senate was, in fact, turned into a quasi-courthouse in which legislators could pick and choose just which kinds of procedures they cared to use, while conveniently banishing or ignoring others.
Think of those hearings as a conveniently watered-down version of a trial in which court procedures were invoked if they aided Kavanaugh, even as — for anything that might have harmed him — exceptions were made and regular procedures ignored. For example, Rachel Mitchell, the Arizona prosecutor appointed to question the judge and his accuser, Christine Blasey Ford, by the all-male Republicans on the commission eager to duck questioning a woman, would be a prosecutor in name only.
Her time was curtailed to five minutes for each senator whose place she took and when it was Kavanaugh’s turn, she was simply shoved aside by the same male senators eager to rant in his favor. Nor, of course, was there anything faintly resembling an impartial judge to oversee Mitchell’s behavior or protect the witnesses, as there is in every courtroom in the United States. Such a mock courtroom both raised and violated not only the very idea of a fair trial but a fair process of any sort.
At top — Brett Kavanaugh. Ninian Reid photo. Above — Guantanamo Bay. U.S. Defense Department photo
Evidence, missing in action
One hoped-for result of a trial is the bringing of facts into the open so that justice can prevail. At no point in the Kavanaugh hearings was there even the semblance of an agreed upon set of facts, no less a coherent way to present them. Quite the opposite, they started and ended with a headlong dash away from the facts. Their undermining began in classic fashion when committee Republicans in conjunction with the White House agreed to withhold millions of documents relating to the judge and his work as a government lawyer in the White House during George W. Bush’s presidency.
In July 2001, he had been hired as an associate by White House Counsel Alberto Gonzales and, in 2003, he became assistant to the president and White House staff secretary where he may, among other things, have had a hand in the development of the Bush administration’s war on terror policies.
And that was just how those hearings began. In addition, of course, when it came to Kavanaugh’s seemingly grim record with women, the accusations of Deborah Ramirez and Julie Swetnick, publicly alleging inappropriate sexual behavior on his part, were ignored by the committee. Not a witness was called on the subject. Similarly, the bevy of statements that might have corroborated his exploits as a binge drinker in high school and college, as well as whether he ever blacked out from drunkenness, were tossed into the garbage pile of unexamined information.
A long overdue FBI investigation of charges against him, finally carried out at the request of Sen. Jeff Flake, but under the watchful eye of the White House, proved a distinctly truncated affair that failed to seriously address the idea of establishing facts as a basis for decision-making. The FBI took the single week allotted to it, reportedly interviewed only nine witnesses, and issued a 46-page report.
Compare this to a New Yorker magazine investigation of just the claims of Deborah Ramirez for which its journalists interviewed “between 50 and 100” people. As its co-author, award-winning investigative journalist Jane Mayer, commented, “The one thing I know from investigative reporting … the one thing that makes a difference is time. It takes a while to find the right people to talk to and to talk to them enough that you feel that you’ve gotten the truth from them and to find any kind of documentary evidence that you can. It just takes time.”
But time is precisely what the Judiciary and the White House did not allow.
And don’t forget the importance of a perception of thoroughness and fairness. As former U.S. Attorney Preet Bharara put it, “[A]t the end of the day, if there is no further corroboration found with respect to these allegations, then Brett Kavanaugh gets confirmed to the bench. It will be better for him, it will be better for people’s respect for the court, it will be better for people’s respect of the process if they had done more rather than less.”
But a thorough investigation was obviously not what the powers-that-be wanted. As White House Counsel Don McGahn reportedly told the president, “a wide-ranging inquiry” into allegations about the judge’s sexual misconduct would be “potentially disastrous.”
Consider the matter of transparency as a grim partner to the withholding, burying, or ignoring of evidence. Given a president who has himself dismissed transparency out of hand — whether in terms of tax returns, election interference, or other subjects — it should have been no surprise that the FBI’s thoroughly inadequate report was not even made public.
It was the equivalent of secret testimony. Nor are there evidently any plans to reveal its contents. That final act of secrecy only underscored the White House’s defiance when it came to withholding the vast trove of documentation on Kavanaugh’s time in the Bush White House. Senator Lindsey Graham caught the mood of the moment perfectly when he stated that he had no plans to read the FBI’s report.
It was obvious to him that the contents would be a foregone conclusion and that he could rely on others to tell him about it. Apparently, he already knew what he thought.
How many times did we have to hear that the nominee should not be held accountable for what he did as a young man? But what about Kavanaugh’s endless — to put it politely — misstatements of fact? As numerous media sites and tweets pointed out, he seemed to lie repeatedly during the hearings. “Senators on the Judiciary Committee had to know they were being lied to,” wrote Eric Alterman of the Nation, “since the lies were continuously highlighted on Twitter.”
New York magazine’s Jonathan Chait called the hearings a “farrago of evasions and outright lies.” And Kavanaugh refused to give his stamp of approval to the FBI investigation, even as he was reportedly pursuing classmates behind the scenes to silence them about the allegations against him.
Had the committee cared to do anything about them, examples of his dissembling were abundantly obvious. He insisted, for instance, that he had not been an excessive drinker. Who cared that The New York Timespublished excerpts from a 1983 letter of his suggesting that the guests at a beach house where he and his friends were planning to party should “warn the neighbors that we’re loud, obnoxious drunks with prolific pukers among us.”
So, too, Kavanaugh’s college roommate, James Roche, attested to Kavanaugh’s heavy drinking in those years. Yet another report mentioned Kavanaugh’s involvement in passing around a girl for sex. He also insisted that he and Christine Blasey Ford, who accused him of sexually assaulting her, had not hung out in the same circles in high school, even though one of the friends he referred to on his list of “[brew]skis,” dated her.
And, of course, his on-the-spot definitions of the phrases “Devil’s Triangle” and “boofed” in his high school yearbook as not relating to sex, seemingly obvious falsehoods, were never explored by the committee.
And so it went in those hearings, when it came to even a semblance of classic legal proceedings involving evidence, transparency, or accountability. Take, for instance, Kavanaugh’s answers about his time in the Bush White House. He told the Judiciary Committee that he had not been part of any discussions about the detention policies of that administration, a category that included both Guantánamo and the administration’s notorious “enhanced interrogation techniques.”
It’s hard, however, to imagine him closing his eyes as memos that we know existed on detention, surveillance, and torture came across his desk on their way to his boss, White House Counsel Alberto Gonzales. In fact, as New Yorker correspondent Amy Davidson Sorkin has written, individuals then at the White House claim that Kavanaugh was in at least one heated debate over the way in which the Supreme Court would assess the administration’s unprecedented detention policies.
As it happened, however, whenever they could, the committee’s Republican majority chose never to hold him accountable for more or less anything and if, by chance, facts did come to light, despite multiple attempts to hide or suppress them, they were simply dismissed, often flippantly.
Guantanamo Bay. U.S. Defense Department photo
The Gitmo template
For some of us, at least, this kind of denial of justice in America is nothing new. If you were following the war on terror all these years, such a wholesale willingness to compromise the very essence of justice has long seemed like a dangerous trend in clear view. Under the circumstances, it should have been no surprise that Brett Kavanaugh came out of the Bush White House and that the former president supported him vocally throughout the entire confirmation process.
In fact, Guantánamo could be said to have created the template for that quasi-courtroom in Washington and the various deviations from normal investigation, law, and procedure that it followed. For observers of that island prison, the Kavanaugh hearings ring an all-too-familiar bell. For nearly a decade and a half now, such quasi-courtrooms have been the essence of “justice” at that prison camp, as one sham hearing after another has been held.
Periodic “reviews” of the very legitimacy of holding detainees in an offshore prison beyond the reach of American justice that had no analog in the American legal system — Combatant Status Review Tribunals under George Bush and Periodic Review Boards under Barack Obama — were introduced simply to justify the continued incarceration of prisoners there. The only goal of such hearings, it appeared, was to avoid the requirements of established protections on the U.S. mainland like due process.
Meanwhile, in Gitmo’s military commissions, as in the Kavanaugh hearings, a central, impartial, independent authority was missing. They are overseen by judges without the power and command of those in the federal court system. Instead, as was true with the White House during the Kavanaugh hearings, the command influence of the Pentagon — and at times the CIA — has hovered over Gitmo’s hearings from day one.
The credentials of the latest judge there, Marine colonel Keith Parrella, named to the position in August, have only underscored a perpetual lack of regard for professional standards. Parrella, who has had no experience in capital cases, will be overseeing future hearings for the still-untried alleged co-conspirators of the Sept. 11, 2001 attacks, who, 17 years later, face the death penalty.
Nor has time been allotted, as The Miami Herald’s Carol Rosenberg has pointed out, for the new judge to digest six years’ worth of motions or 20,000 pages of transcripts. No matter. It’s no more of a problem than not absorbing or dealing with the Kavanaugh evidence was to the White House or the Senate Judiciary Committee. Compromised professional standards and procedures, the calling card of Guantánamo’s attempts to adjudicate justice, are now clearly making the move to the mainland.
Inside Gitmo’s quasi-courtrooms, violations of longstanding procedure occur on a regular basis. For example, attorney-client privilege has been upended on numerous occasions over many years. Hidden government surveillance devices have been used to spy on detainee lawyers and their conversations with their clients, as in the case of Abd Al-Rahim al-Nashiri. So, too, the government urge to withhold witness testimony, apparent in the Kavanaugh hearings, echoes Guantánamo where the very idea of a fair trial has long seemed inconceivable to experts.
As at the Judiciary Committee in recent weeks, excluded evidence has been a commonplace feature of Gitmo’s military commissions. Lawyers for the detainees are regularly ignored in their attempts to present potentially crucial material, as in the case of Ammar Al Baluchi, especially when it relates to the torture and mistreatment of detainees while in custody.
Since President Trump took office, the military commissions system has only strengthened prohibitions that block the defendants’ lawyers from access to witnesses and documents. This year, lawyers for the five detainees accused of conspiring in the attacks of 9/11 were informed that they had been prohibited from investigating the role that CIA officials and associates played in the brutal interrogation of their clients, testimony that is, they maintain, crucial to their defense strategies, particularly for the death penalty phase of the trial.
In fact, at Gitmo, burying the facts has meant, in essence, burying prisoners alive. As defense attorney Joseph Margulies recently wrote about his client, Abu Zubaydah, who was waterboarded 83 times, the government has continually bypassed legal process, preferring to detain Zubaydah forever in silence rather than afford him a trial and the presentation of evidence.
As with all that repressed documentation on Kavanaugh’s White House years, at Gitmo the government has regularly insisted on keeping facts secret. In this spirit, to keep the record clear of hard information about its torture practices, the CIA ordered the destruction of 92 tapes showing some of its grim interrogation sessions.
Even the 6,000-page Senate report on those interrogations has been classified and so largely kept from the public, while the Trump administration has tried to bury it further by rounding up existing copies from the agencies that had them in their possession.
Without a proper judge, and minus valuable evidence, without any appetite for transparency or accountability, the Gitmo proceedings and the issues that haunt them have been reduced to a kind of invisibility. They are now sham events, just as the Kavanaugh hearings and investigation proved to be.
Most of those paying attention have long since concluded that, as criminal defense attorney Joshua Dratel put it, “The reliability and legitimacy of verdicts is completely undermined by secret proceedings.” So, too, may history judge Brett Kavanaugh’s ascension to the bench in proceedings in which secrecy, as well as withheld or intentionally ignored evidence, prevailed.
The Constitution put a condition on the granting of lifetime positions to justices. “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.” While the good behavior of now-Supreme Court justice Kavanaugh will forever be in question, more important may be the wound that his confirmation hearings inflicted on an American belief in the possibility of justice in this country.
Guantánamo’s tainting of justice should, from early on, have served as a warning. Instead, it seems to have become a template for “justice” in the nation’s capital. The 2007 Manual for Military Commissions ominously included in its preamble the prediction that “this Manual will have an historic impact for our military and our country.”
And so, as the Kavanaugh confirmation process suggests, it did. It’s hard to imagine a more telling event than the rise to the Supreme Court of a White House lawyer present at the creation of many of those Gitmo policies. Under the circumstances, it should hardly surprise anyone that the road to his confirmation displayed many of the legal aberrations launched during the Bush era.
As the Gitmo story illustrates, Kavanaugh’s confirmation was not the first nail in the coffin of justice in America — and sadly, it’s unlikely to be the last.
Karen J. Greenberg, a TomDispatch regular, is the director of the Center on National Security at Fordham Law and the author of Rogue Justice: The Making of the Security State. She also wrote The Least Worst Place: Guantánamo’s First 100 Days. This story originally appeared at TomDispatch.