With the nomination of Judge Brett Kavanaugh to replace Justice Anthony Kennedy, I have decided to examine Judge Kavanaugh's views on the extraterritorial application of the Constitution. Because of his position on the D.C. Circuit, he has a higher than usual number of opinions in this area, largely as a result of that Circuit's role in overseeing appeals from detainees held at Guantanamo Bay, Cuba.
This is something of a mixed blessing - on the one hand, it provides a larger number of opinions to analyze; on the other, almost all of them involve questions of war, which tend to be treated differently than other areas of law. Nonetheless, an examination of Judge Kavanaugh's six opinions dealing with the extraterritorial application of the Constitution is useful.
Special thanks to dccircuitbreaker.org for compiling all of Judge Kavanaugh's opinions in one place for easy reference.
To begin, I analyze the five opinions Judge Kavanaugh wrote involving constitutional claims arising out of Guantanamo Bay.
Al Bahlul v. US – ex post facto – Al Bahlul appeared before the en banc D.C. Circuit numerous times. In this opinion, the Court was addressing a claim that the military commission convicted Al Bahlul of crimes that were not defined as triable by military commission at the time they were created. Judge Kavanaugh concurred in part and dissented in part. He accepted the Government’s concession that, in light of Boumediene v. Bush, the Ex Post Facto Clause of the Constitution applied to Al Bahlul, and therefore he could not be tried for material support or solicitation for conduct occurring before passage of the 2006 Military Commissions Act. Kavanaugh called this concession correct. He voted to uphold a conspiracy charge (along with 5 other judges) because conspiracy has long been a charge triable by military commission. In footnote 3, he notes it would not be impracticable or anomalous to apply the ex post facto clause to Guantanamo Bay. He further assumed Bahlul had rights under the Fifth, Sixth, and First Amendments and dismissed the claims on the merits. The one area where he rejected the extraterritorial application of the Constitution was al Bahlul’s claim that he was being prosecuted for speech made in Afghanistan. He argued that as a foreigner, al Bahlul had no right to the First Amendment in a foreign country. He qualified this holding, however, by noting that even if such a right existed, the speech in this case was covered by the exception for speech directed to inciting imminent lawless action.
Al Bahlul v. US – Art I and III and conspiracy – Again, Judge Kavanaugh addresses the question on its merits, rather than arguing that the Constitution does not apply in Guantanamo Bay. Here, nothing in Article I or Article III prevents Congress from making conspiracy to commit war crimes triable by a military commission.
Meshal v. Higgenbotham – Meshal was a Bivens suit by a U.S. citizen against U.S. agents who allegedly tortured him in three African countries. Judge Kavanaugh concurred, noting that the application of Bivens abroad, as well as the national security posture of the investigation, presented a new context, which required rejecting the suit in this case. As he put it, the question of the case is: who decides to create remedy for this sort of behavior – the courts or Congress? He believed the answer was Congress. Therefore, since Congress had not seen fit to provide a remedy to U.S. citizens tortured abroad, it was not up to the Court to do so.
Kiyemba v. Obama – This case dealt with the decision to transfer nine Uighers, held at Guantanamo Bay, to another country where they feared torture. Judge Kavanaugh wrote a concurring opinion rejecting a challenge to the decision to transfer them. Relying on Munaf v. Geren, where the Supreme Court held that American citizens could not challenge their transfers, he held that aliens with no constitutional right to enter the country could demand the Court second-guess the Executive’s decision that they were unlikely to be tortured. It is up to the Secretary of State to determine if extradition should be denied for humanitarian reasons. He thus concluded that, even if the detainees had due process rights, the Courts were unable to re-evaluate an Executive Branch decision about the likelihood of torture.
Hamdan v. US – Here, Judge Kavanaugh construed the Military Commissions Act of 2006 so as to avoid an Ex Post Facto Clause issue, holding that the act did not authorize the retroactive prosecution of crimes that were not prohibited as was crimes triable by military commission under U.S. law at the time the conduct occurred. Judge Kavanaugh also, in footnote 6, addressed the antecedent question of whether Congress could ever define material support of terrorism as a war crime. He concluded it could on the merits, but notably did not hold that Hamdan could not raise the argument.
Taken together, these cases evidence a willingness to accept that the Constitution applies outside the United States, at least as far as U.S.-controlled territory is concerned. Judge Kavanaugh went out of his way to note that the Government's concession regarding the applicability of the Ex Post Facto Clause was legally correct. However, when it comes to claims outside of U.S.-controlled territory, raised by non-U.S. citizens, he appears to be much more reluctant to accept those claims. This does not appear to be a marked depature from Justice Kennedy. Of course, Judge Kavanaugh was bound by Supreme Court precedent in the form of Boumediene v. Bush when making these decisions. When he has the power to change those precedents, it is unclear what he would do. But overall, he has shown due respect for precedent, and was a clerk and confidant of Justice Kennedy, Boumediene's author. And despite the fact that his decisions have presaged changes in Supreme Court decisions in the past, he did nothing to try and push back on Boumediene's core holding.
The only non-detainee case Judge Kavanaugh heard was Garza v. Hargan, which dealt with a claim by an undocumented minor, held in Government custody, seeking an abortion. Judge Kavanaugh filed a dissent from the decision to allow an undocumented minor to immediately seek an abortion. He accepted the Government’s assumption that Jane Doe had a right to seek an abortion, but took issue with the claim that the Government did not have an interest in seeking to expeditiously place her with a sponsor prior to seeking the abortion. He did not take issue with the existence of the right (contra the dissenting opinion of Judge Henderson). Rather, he disagreed that waiting a week and giving the Government time to find a sponsor constituted an undue burden on Jane Doe’s right. While reasonable people can certainly disagree about this question, nothing in Judge Kavanaugh’s opinion indicates he is hostile to extending constitutional protections even to those with few ties to the United States.
Overall, it appears that Judge Kavanaugh is willing to follow the current trend of the Supreme Court and would extend the Constitution's protections to American citizens everywhere and non-citizens who are in U.S.-controlled territory. His decision in Meshal raises questions about the ability of U.S. citizens to seek remedies, but it is no more constrictive than the Supreme Court's general jurisprudence regarding Bivens. His Garza dissent does perhaps offer some glimmer of hope to aliens in U.S.-controlled territory who lack substantial connections. Judge Kavanaugh did not cite Verdugo-Urquidez nor examine what ties Jane Doe had to the United States. Rather, he assumed the right applied and then made a fairly narrow point in his dissent. Until the question is squarely presented to him, it is hard to make any judgments about what this means. For now, I am cautiously optimistic that he views the "impracticable and anomalous" test as a better method for answering the question than the "substantial connections" test.