Lindsey Graham: Talk about the law and war. Is there a body of law called the Law of Armed Conflict?
Brett Kavanaugh: There is such a body, Senator.
Lindsey Graham: Is there a body of law that’s called Basic Criminal Law?
Brett Kavanaugh: Yes, Senator.
Lindsey Graham: Are there differences between those two bodies of law?
Brett Kavanaugh: Yes, Senator.
Lindsey Graham: From an American citizen’s point of view, do your Constitutional rights follow you? If you’re in Paris, does the Fourth Amendment protect you, as an American, from your own government?
Brett Kavanaugh: From your own government, yes.
Lindsey Graham: OK. So, if you’re in Afghanistan, do your Constitutional rights protect you against your own government?
Brett Kavanaugh: If you’re an American in Afghanistan, you have Constitutional rights, as against the US government.
Lindsey Graham: Is there a long-standing –
Brett Kavanaugh: That’s a long-settled law.
Lindsey Graham: Isn’t there also a long-settled law that goes back to Eisenstrader (sic) case? I can’t remember the name of it.
Brett Kavanaugh: Johnson versus Eisentrager?
Lindsey Graham: Right, that American citizens who collaborate with the enemy have considered Enemy Combatants?
Brett Kavanaugh: They can be.
Lindsey Graham: They can be.
Brett Kavanaugh:They’re often sometimes criminally prosecuted, sometimes treated in the military.
Lindsey Graham: Well, let’s talk about can be.
Brett Kavanaugh: I think the – under Supreme Court precedent.
Lindsey 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?
Brett Kavanaugh: That is correct.
Lindsey Graham: I think a couple of them were executed.
Brett Kavanaugh: Yeah.
Lindsey 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 could hold one of our own as an enemy combatant, if there were engaged in terrorist activities in Afghanistan? Are you familiar with that case?
Brett Kavanaugh: Yeah, Hamdi.
Lindsey Graham: OK. So the bottom line is, on every American citizen, though 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?
Brett Kavanaugh: I do understand that there are different bodies of law, of course, Senator.
Lindsey Graham: OK.