The American University Law Review has published War, Terror, and the Federal Courts, Ten Years after 9/11, the lightly edited transcript of a panel featuring Judge Brett M. Kavanaugh that was held at the 2012 Annual Meeting of the Association of American Law Schools. The other panelists were Curt Bradley (Duke Law School), Sarah Cleveland (Columbia Law School), Marty Lederman (Georgetown Law School), Judith Resnik (Yale Law School), and Steve Vladeck (Washington College of Law at American University).
Judge Kavanaugh articulated a Congress-centric war powers jurisprudence:
What’s the big picture of where we are right now in terms of federal courts, separation of powers, war powers? I would start with, in the wake of September 11th, Congress authorizing two wars: it authorized the war against Al-Qaeda and the Taliban, and authorized the war in Iraq. . . . A President, who in the future tries to engage in an unauthorized ground war of any significance, will be faced with those precedents used against them. President Bush obtained authorization for those two wars.
Second– . . . Congress has regulated the Executive’s conduct of war in many respects, both before and after September 11th. We tend to forget that and sometimes think, well this is all just the Executive Branch operating in kind of a free zone, free from congressional restraint. And in fact, whether it’s interrogation or detention, surveillance, a number of particulars of how the Executive goes about the war effort, Congress has been deeply involved, including in the wake of September 11th. . . .
I start with background notions of judicial restraint in times of war . . . [I]f Congress hasn’t put a restriction in and if the Executive action is not something that’s concrete or our history talks about, or is contrary to something that the Executive has done before may a court reach out and say, we’re going to restrain the Executive nonetheless, because we think it’s contrary to international law?
Although he stood by his concurrence in the denial of rehearing en banc in Al-Bihani v. Obama, Judge Kavanaugh opined that the political branches should heed international law even when it is not binding from the perspective of domestic law.
[T]he Executive Branch and Congress should, as I said upfront in my concurrence, should pay attention to international law obligations when thinking about what to put in the statutes. And when the Executive Branch is exercising its discretion pursuant to an authorization for the use of military force, or the President’s Article II authority. . . . Congress, on many occasions, has taken international law principles and put them into federal statutes, sometimes directly, by borrowing from the principle that’s at hand, sometimes by just having a reference, as in Hamdan, to international law or the laws of war more generally or the law of nations more generally. . . . I think it’s a good thing when the Executive pays attention to international law principles for purposes of our international relations and otherwise.
During Q&A, Trevor Morrison suggested that the approach in Al-Bihani most consistent with judicial restraint would have been to take no position on whether the Executive’s power under the AUMF is constrained by international law and to simply accept the Government’s concession that it is so constrained for the limited purpose of the case at hand. In response, Judge Kavanaugh defended his statement that “Courts must be careful before enshrining [the Executive's] concessions [on legal questions affecting government power] into binding judicial precedent protected by stare decisis that a future Executive could not readily undo.”
I thought it was an important point . . . to reemphasize . . . the central role of Congress in war powers issues, which is not necessarily something that was evident in the immediate wake of September 11th . . . . When Congress imposes limits on the Executive Branch’s conduct of war, courts will enforce those limits . . . . But when Congress has not put something into the statute . . . how should the courts then act? . . . . The Chief had just said this, in Free Enterprise v. PCAOB, . . . –the Executive may want to tie its own hands, but it can’t tie the hands of future presidents. . . . In terms of deferring to the Executive, . . . [i]f they think they’re detaining someone in violation of international law, they can release the person, but to the extent they come to court, it’s usually up to the courts to decide . . . the tools of statutory construction and the like.
Although he cited Chief Justice Roberts for this point, Judge Kavanaugh parted ways with the Chief on the utility of law review articles:
Judge Kavanaugh: . . . I benefit from the scholarship of the people on this panel, such as Marty [Lederman]’s article [with David Barron on Congress’s authority to regulate the Commander in Chief] that I have here.
Marty Lederman: At lunch we were comparing how many times Judge Kavanaugh cites to legal scholarship. He really does read your stuff, so keep writing it!
Judge Kavanaugh: Professor Vladeck’s critique, which I have read, and maybe wince [at], but I still learn from. (laughter)
Sarah Cleveland: Read but not cited.
Judge Kavanaugh: Yes, read but not cited yet. (laughter)
Steve Vladeck: But see! (laughter)
Judge Kavanaugh: And the people in this room, I want to thank you for what you do in studying what the courts do and writing about what the courts do, and I for one learn from what you do. As Professor Resnik said, this is an ongoing process that we’re in.
The transcript also contains an interesting colloquy between Marty Lederman and Steve Vladeck on Hamdan v. United States, a case Judge Kavanaugh would hear argued four months later. Judge Kavanaugh did not participate in the discussion, but at oral argument he expressed sympathy for Professor Vladeck’s position that Congress lacked authority to retroactively define material support for terrorism as an offense against the law of nations.
- Peter Margulies Reports on AALS I, Lawfare (Jan. 10, 2012)
- Peter Margulies Reports on AALS II, Lawfare (Jan. 10, 2012)
- D.C. Circuit Could Split Three Ways on Material Support for Terrorism Conviction, D.C. Circuit Review (May 3, 2012) (“Reports . . . suggest that Judge Kavanaugh is sympathetic to Hamdan’s challenge to the ex post facto application of the criminal law.”)
- Al-Bihani v. United States, 619 F.3d 1, 47 n.26 (2010) (Kavanaugh, J., concurring in the denial of reh’g en banc) (“Perhaps an individual President might find advantages in tying his own hands. But the separation of powers does not depend on the views of individual Presidents, nor on whether the encroached-upon branch approves the encroachment. The President can always choose to restrain himself. . . . He cannot, however, choose to bind his successors by diminishing their powers, nor can he escape responsibility for his choices by pretending that they are not his own.” (quoting Free Enterprise Fund v. Pub. Co. Accounting Oversight Bd., 130 S.Ct. 3138, 3155 (2010))).