Graham: So when somebody says post 9/11, that we’ve been at war and it’s called the war on terrorism do you generally agree with that concept?
Kavanaugh: I do senator, because congress passed the authorization of military force, which is still in effect, and that of course was passed on Sept. 14th, 2001, 3 days later!
Graham: Let’s talk about the law and war.
Is there a body of law called the Law of Armed Conflict?
Kavanaugh: There is such a body, Senator.
Graham: Is there a body of law called Basic Criminal Law?
Kavanaugh: Yes, senator.
Graham: Are there differences between those two bodies of law?
Kavanaugh: Yes, senator.
Graham: From an American citizen’s point of view, do your constitutional rights follow you?
If you’re in Paris, does the 4th amendment protect you from your own government?
Kavanaugh: From your own government yes!
Graham: Okay, so, if you’re in Afghanistan, do your constitutional rights protect you against your own government?
Kavanaugh: If you’re an American in Afghanistan, you have constitutional rights against the U.S. government. That’s a long settled law.
Graham: Isn’t there also a long settled law that goes back to Eisentragor case, I can’t remember the name.
Kavanaugh: Johnson Vs Eisentrager
Right, right, that American citizens Who Collaborate with the Enemy are considered Enemy Combatants?
Kavanaugh: They can be, they’re often, they’re sometimes criminally prosecuted, sometimes treated in the military system.
Graham: Let’s talk about “can be.” I think the,
Kavanaugh: Under Supreme Court precedent.
Graham: Right, there’s a Supreme Court decision that said, that American citizens who collaborated with Nazi Saboteurs, were tried by the military, is that correct?
Kavanaugh: That is correct.
Graham: I think, a couple of them were executed.
Graham: So, if anybody doubts, there’s a long standing history in this country that your constitutional rights follow you wherever you go, but you don’t have a constitutional right to turn on your own government and collaborate with the enemy of the nation. You’ll be treated differently!
What’s the name of the case if you can recall, that reaffirmed the concept that you can hold one of our own as an enemy combatant, if they were engaged in terrorist activities in Afghanistan? Are you familiar with that case?
Kavanaugh: Yeah, Hamdi vs. Rumsfeld
Graham: So the bottom line is, I want every American citizen to know you have constitutional rights, but you do Not have a constitutional right to collaborate with the enemy.
There’s a body of law well developed long before 9/11 that understood the difference between basic criminal law and the law of armed conflict. Do you understand those differences?
Kavanaugh: I do understand that there are different bodies of law, of course senator.