If President Donald Trump picks Brett Kavanaugh to be the next Supreme Court justice, senators might find themselves debating whether the judge gave false testimony about detainee policy the last time he had a confirmation hearing.
That is in part because the two senators who suggested Kavanaugh may have misled them still serve on the Judiciary Committee.
Kavanaugh’s potential connection to the detention policies in the early 2000s stems from his work as a lawyer in the White House during the George W. Bush administration.
The question of what Kavanaugh knew about the interrogation programs was a topic of discussion during Senate consideration of his nomination to be a judge on the U.S. Court of Appeals for the D.C. Circuit.
Illinois Democratic Sen. Richard J. Durbin, the current minority whip and a long time member of the Judiciary Committee, asked Kavanaugh back in 2006 what he knew about the involvement of William J. Haynes II, who had been a Bush nominee for a Fourth Circuit seat, in developing detainee policies.
“Senator, I did not — I was not involved and am not involved in the questions about the rules governing detention of combatants — and so I do not have the involvement with that,” Kavanaugh said back in May 2006.
After reporting from media outlets including NPR, Durbin followed-up with a letter to Kavanaugh, who by then had been confirmed, about his involvement in meetings with Vice President Dick Cheney about the potential need to provide lawyers to detainees.
Durbin asked for Kavanaugh to recuse himself from detainee-related cases.
“In light of the Washington Post and National Public Radio reports, your sworn testimony appears inaccurate and misleading,” Durbin wrote. “By testifying under oath that you were not involved in this issue, it appears that you misled me, the Senate Judiciary Committee, and the nation.”
“Therefore, I request that you provide the Senate Judiciary Committee with an explanation for this apparent contradiction,” he said.
Durbin’s office said earlier this week they had no record of a response from Kavanaugh — nor did there appear to be a real resolution to Durbin’s 2007 concerns.
Kavanaugh has ruled in some cases that could be reasonably construed as connected to U.S. detention programs in the aftermath of the Sept. 11, 2011, terrorist attacks. That includes a case decided in 2016, reported on by The Washington Post, in which the D.C. Circuit upheld the conviction of Ali Hamza al-Bahlul, who had been Osama bin Laden’s media secretary.
A separate Democratic letter from June 2007 went even further.
Sen. Patrick J. Leahy, the chairman of the Judiciary Committee at the time, referred the alleged misstatements to then-Attorney General Alberto Gonzales for possible prosecution.
“Mr. Kavanaugh’s responses to written follow-up questions from Senator Durbin reinforced the impression that Mr. Kavanaugh had no awareness or involvement in the legal justifications for the policy on detainees until it became public,” Leahy wrote. “He was subsequently reported out of Committee with a favorable recommendation and confirmed to the D.C. Circuit.”
While it is unclear if the issue could weigh on Trump’s decision-making, it would be hard to imagine the documentation wouldn’t surface during White House vetting of Kavanaugh.
The Leahy letter to Gonzales was copied to Jeffrey A. Taylor, the U.S. attorney in D.C., at the time.
“False testimony by any witness is troubling and undermines the Senate’s ability to fulfill its constitutional duties on behalf of the American people,” Leahy wrote. “But my concern is heightened because the subject matter of the possibly false testimony was highly controversial and played a critical role in many Senators’ consideration of Mr. Kavanaugh’s nomination for a lifetime appointment to one of the courts most involved in reviewing those very same detention policies.”