In a horrific and disheartening 2009 decision, Judge Brett Kavanaugh, Donald Trump's new choice for the Supreme Court, joined with the Chief Judge of the D.C. Circuit in a 2-1 decision throwing out a civil tort lawsuit by Iraqi victims of the horrendous torture carried out at the notorious Abu Ghraib prison by US military contractors under the G.W. Bush administration.

Even though the contractors involved were not part of the US military, and there was no allegation that their hideous torture of Iraqi civilians was carried out under the direction of the military or any other US government personnel, Kavanaugh joined Chief Judge Silberman in dismissing the lawsuit as an infringement of broad federal power, in this case, on the "battlefield" (as the two judges evidently referred to the prison's torture chambers).

Sadly, but very significantly, the only voice in favor of the rights of the tortured, rather than the torturers, came in a dissent in the three- judge panel from Judge Merrick Garland, President Barack Obama's choice to fill a vacant Supreme Court seat, whom the Republican Congressional majority did not even allow to have a confirmation hearing.

The case is Saleh v. Titan Corporation No. 08-7008, decided on September 11, 2009.

This lawsuit (actually two combined separate cases against different defendants) did not deal directly with immigration issues, but the decision by Kavanaugh and the Chief Judge to the effect that torture victims in effect have no rights in the face of the broad power of the federal government could very possibly show what his attitude may be toward immigrants seeking to protect themselves or recover damages in the federal courts for the abuse and mistreatment they have been subjected to under Trump's inhuman child separation policy (and other egregious abuses, dating back not only to the beginning of his regime, but also to President Barack Obama's administration).

While the majority decision that Kavanaugh joined was full of lengthy arcane discussions about federal/state preemption law, the basic thrust of the decision was to conflate torture inflicted by private contractors who were not military personnel, not fighting in any battles, and were not even acting under the direction or control of the US military as they inflicted horrible tortures on civilians at a prison removed from any battlefield, with military action itself.

In the words of the decision:

"As the Ninth Circuit has explained, the combatant activities exception was designed 'to recognize that during wartime encounters [,] no duty of reasonable care is owed to those against whom force is directed as a result of authorized military action'...

Yet, it is clear that all the traditional rationales for
tort law deterrence of risk-taking behavior...are singularly out of place in combat situations, where risk-taking is the rule."

While the above language is certainly nowhere near the Nazi claim to the effect that "since Germany is at war, we have to kill the Jews, the above kind of argument stands at least at the beginning of the road that leads in that direction. What does torture of civilians by private contractors who are not soldiers and not acting under military direction have to to with military combat?

This same emphasis on supporting governmental power at the expense of the basis human rights of individuals can just as easily play out in the area of immigration policy, where the Trump administration has been claiming the power to use extreme measures which violate one of the most fundamental of all human rights, namely the bond between parent and child, in support of its policy of "protecting US borders" (against brown immigrants).

When it comes to dealing with the horrendous effects of this and other human rights abuses carried out with the goal of "deterring" unauthorized immigration by people from what Trump calls "shithole" (i.e. non-white) countries, which side will Justice (to be) Kavanaugh be on - the side of basic humanity, or the side of uncontrolled governmental power?

My forthcoming post will discuss Judge Merrick Garland's dissent in this case, and show how much America lost in terms of protecting our deepest and most essential human values, and our basic liberties, when the Senate leadership set the stage for Donald Trump to make this crucial Supreme Court appointment, rather than President Obama.
Roger Algase is a New York immigration lawyer and graduate of Harvard College and Harvard Law School. For more than 35 years, he has been helping mainly skilled and professional immigrants obtain work visas and green cards. His practice focuses on specialty occupation (H-1B) and extraordinary ability (O-1) work visas; and green cards through labor certification, and through marriage or other family relationships.

Roger also writes about immigration law from the standpoint of racial equality, equal justice before the law and fundamental human rights, all of which are now under unprecedented attack. Roger's email address is