Here's the full clip of @SenatorLeahy questioning Judge Kavanaugh on surveillance issues and his prior opinions
Unfortunately Kavanaugh fails to address several important points Senator Leahy raises, which I'll detail
https://www.c-span.org/video/?c4748064/sen-leahy-questions-kavanaugh-surveillance …
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First, Leahy’s initial inquiry is how Kavanaugh’s concurrence said NSA bulk collection was justified by nat sec when its security value had been debunked Kavanaugh says he was relying on precedent, but he’s actually jumping away from section of his opinion Leahy was talking aboutpic.twitter.com/7yKRTaTpDr
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Kavanaugh *did* rely on the now tattered 3rd Party Doctrine for his ruling, but Leahy was asking about a later section where Kavanugh said that even without this doctrine, the NSA bulk collection was acceptable because of "national security need"
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And Kavanaugh’s view there – which he doesn’t address – is very troubling, because he not only shows full deference to an unproven executive claim of “national security need,” but also that he’s willing to accept a claim of national security need that’s been repeatedly disprovenpic.twitter.com/lfFqoEN5g3
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Next Leahy asks if his view on Klayman would be different post Carpenter & Kavanaugh says of course. This is good, but isn't responsive to the most worrying part of his concurrence: That terrorism constitutes a “special need” where mass surveillance is okay even if it is a searchpic.twitter.com/4YmXKAu5YP
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Kavanaugh’s “special needs” label for counterterrorism isn’t discussed, but it’s a radical deviation from prior use Those cases involve special circumstances (driving, flying, being in school) Kavanaugh flips special needs being about circumstance & makes it about government goal
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Replying to @JakeLaperruque
It seems to me directly at odds with the reasoning in Keith anyhow.
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Replying to @pwnallthethings
In light of USA FREEDOM having already passed when he wrote the opinion definitely. But even if it was from before legislative action it seems like a crazy contortion of "special needs" from focusing on situation to focusing on government's objective
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But the argument abt govt goal may NOT be inconsistent with what he and Yoo and Flanigan were thinking in September 2001.
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