The ACLU is among the most reliable contrarian indicators on matters related to constitutional law. On issues where the vote is likely to be close, a member of Congress could simply look at the ACLU position and vote the other way and do pretty well.
At SCOTUSblog, the review of Judge Kavanaugh's opinions on national security matters is written by Jonathan Hafetz, "a senior staff attorney in the Center for Democracy at the American Civil Liberties Union." The tone of the review is quite negative. Just as stock market commentators turning bearish is a buy signal, a negative review from the ACLU is an endorsement.
Mr. Hafetz seems to be displeased with Judge Kavanaugh's concurrence in the case of Al-Bahlul v. United States. The per curiam opinion in that case begins, "Bahlul is a member of al Qaeda who assisted Osama bin Laden in planning the September 11, 2001, attacks on the United States." That is, he was a fully participating conspirator in the murder of nearly three thousand people. Mr. Hafetz notes that "in his concurring opinion, Kavanaugh remarked that the Constitution does not 'impose international law as a limit on Congress's authority to make offenses triable by military commission.' " Yes, we decided quite some time back that the United States would be "free and independent." International law is something that Congress and the President should consider in deciding what actions to take, but it is not something that judges should invoke in striking down an Act of Congress. In a bit more context, Judge Kavanaugh wrote:
That is apparent from five sources of law: the text and original understanding of Article I, the overall structure of the Constitution, landmark Supreme Court precedent, longstanding federal statutes, and deeply rooted U.S. military commission practice.First, the text and original understanding of Article I demonstrate that international law does not impose a limit on Congress's authority to make offenses triable by military commission.
Imagine that, not only looking to the text and original understanding of the Constitution, but looking to them first. That is really the only approach to constitutional interpretation that is consistent with a respect for the people's right of self-government, i.e., democracy. The Constitution means what the people meant it to mean until the people, not the courts, change it.
Mr. Hafetz concludes:
Given that Boumediene was wrongly decided (see CJLF brief), that would be a significant change in the correct direction.And given that a Justice Kavanaugh would replace Justice Anthony Kennedy -- the swing vote in several key national security cases (such as Boumediene v. Bush, in which the Supreme Court held that Guantanamo detainees have a constitutional right to habeas corpus) -- his impact in this area of the law could bring significant change when such cases reach the court.
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