What is in the 85 percent of the available documents, amounting to more than 100,000 pages, that the White House has refused to release concerning Judge Brett Kavanaugh’s role in the formulation and implementation of U.S. government policy authorizing the use of torture against detainees and prisoners in America’s war against terror after 9/11?

What we do know suggests the likelihood that Kavanaugh, both as Associate White House Counsel under George Bush from 2001 to 2003 and then as his White House Staff Secretary from 2003 to 2006, had significant involvement in the Bush Administration’s torture policies. We need to continue to demand to see Bush White House files to “pin down specifics of any Kavanaugh involvement in detainee policy discussions.” (See the Chicago Tribune article by Michael Kranish, “Kavanaugh’s role in Bush-era torture debate now an issue in his Supreme Court nomination,” July 18, 2018.)

The refusal—and mainstream American culture’s complicity in that refusal—of our institutions of governance and government oversight to have the question of the legalization of torture by the U.S., from 2001 to the present, re-opened, I believe, lies just beneath the surface, and to partially account for, the intensity of the stakes—emotional and psychological as well as political, social and ideological—felt by all Americans in resumed confirmation hearings, scheduled for tomorrow, of Judge Brett Kavanaugh’s appointment to the Supreme Court in response to the accusations of sexual misconduct brought against him by three credible women.

The questions raised by Americans’ continuing denial of the consequences for the character of the history we are living of our government’s explicit official sanction of torture by all the senior members of the executive branch of the Bush Administration—including those in the Office of Legal Counsel who participated in writing and approving the secret legal findings enabling and justifying torture—and the questions raised by Judge Kavanaugh’s alleged acts of sexual misconduct and the Senate Judiciary Committee’s Republican members’ refusal to subject his categorial denials to the test of empirical investigation share something fundamental in common. Both confront those charged with making a judgment about them with the question of how long democracy can survive if official power instrumentalizes truth to the point that it successfully uses the unaccountable violence of the force at its disposal to constitute the content of its self-legitimation.

The participation of an American lawyer serving as Associate Counsel to the President in the formulation of policies authorizing torture—a breach of jus cogens, a norm of international law from which no derogation is permitted as a first principle of the rule of law itself—and the assertion through personal violence of an entitlement to sexually assault women with impunity that includes having false denials given under oath of those substantiated acts upheld by a committee of the Senate of the United States are acts that share a crucial characteristic. Both perpetrate a formally sanctioned illicit unchecked violence exercised without accountability against devalued, defenseless persons. Surely that comes close to a working definition of fascism.

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