June 26, 2007
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Anna Christopher, NPR
   

NPR NEWS’ ARI SHAPIRO REPORTS JUDGE BRETT KAVANAUGH
DID NOT DISCLOSE PRIOR INVOLVEMENT
IN WHITE HOUSE DISCUSSIONS
ABOUT ENEMY COMBATANTS DURING CONFIRMATION HEARING

SENATOR DICK DURBIN TELLS NPR
KAVANAUGH “KNEW HE WAS MISLEADING,”
WILL ASK JUDGE TO RECUSE HIMSELF

ON NPR NEWS ALL THINGS CONSIDERED
TODAY, TUESDAY, JUNE 26; AUDIO AT WWW.NPR.ORG


June 26, 2007; Washington, D.C. – D.C. Circuit Court of Appeals Judge Brett M. Kavanaugh did not disclose his involvement in at least one White House discussion regarding enemy combatant issues during his 2006 Senate Judiciary Committee confirmation hearing, NPR News justice reporter Ari Shapiro is reporting today on the newsmagazine All Things Considered. A Web version of the report is available at: http://www.npr.org/templates/story/story.php?storyId=11433231.

According to Shapiro, multiple sources have confirmed that Kavanaugh, who denied any prior or current involvement in “rules governing detention of combatants” at his confirmation hearing, did in fact meet with a group of top White House lawyers about enemy combatants in 2002. Shapiro reports: “Kavanaugh used to clerk for the Supreme Court's swing voter, Justice Anthony Kennedy, and he advised the White House lawyers at that meeting that Kennedy would probably reject the President's claim that American combatants could be denied access to a lawyer.”

Senator Dick Durbin, who sits on the Senate Judiciary Committee, tells NPR’s Shapiro that he feels “Perilously close to being lied to. I will just say that [Kavanaugh] might have decided that he could split the difference here and give me an answer in the negative, but he had to know he was misleading me and the committee, and the people who were following this controversial nomination. We are going to write to him and ask that based on this contradiction in this sworn testimony, that he recuse himself from cases involving enemy combatants.”

In a statement to NPR News, a court spokesperson notes: “Judge Kavanaugh's confirmation testimony was accurate, and Judge Kavanaugh will continue to carefully address recusal issues based on the law and facts of each case."

All excerpts must be credited to NPR News All Things Considered. Television usage must include on-screen credit with NPR logo. The audio of the interview will be made available at www.NPR.org at approximately 7:00 p.m. ET.

All Things Considered, NPR's signature afternoon news magazine, is hosted by Melissa Block, Michele Norris, and Robert Siegel and reaches 11.5 million listeners weekly. To find local stations and broadcast times, visit www.NPR.org.

-NPR-


ROBERT SIEGEL: One of President Bush's most controversial judicial nominees may have misled Senators at a crucial confirmation hearing last year. Brett Kavanaugh told Senators that when he worked as a White House lawyer for President Bush, he was not involved in enemy combatant issues. Now it seems that statement was not entirely true. NPR's Ari Shapiro reports.

ARI SHAPIRO: Today, Brett Kavanaugh has lifetime tenure as a judge on the powerful federal appeals court here in Washington. His court gets more detainee cases than any other US court. In fact, the first case Kavanaugh ever heard as a judge was about Guantanamo detainees. When President Bush nominated Kavanaugh, Senators knew the judge would handle enemy combatant cases if confirmed. So at his confirmation hearing in May of last year, they asked him whether he worked on detainee issues at the White House. Illinois Democrat Dick Durbin questioned Kavanaugh about William Haynes, who helped develop harsh interrogation policies and was later nominated for a judgeship.

SEN. DICK DURBIN: [TAPE] What was your role in the original Haynes nomination and decision to renominate him? And at the time of the nomination, what did you know about Mr. Haynes's role in crafting the administration's detention and interrogation policies?

JUDGE BRETT KAVANAUGH: [TAPE] Senator, I did not – I am not involved and was not involved in the questions about the rules governing detention of combatants. And so I do not have any involvement with that.

MR. SHAPIRO: But in 2002, Kavanaugh WAS involved in a White House conversation about detainees. The meeting was about American enemy combatants, such as Jose Padilla and Yasser Hamdi. Kavanaugh used to clerk for the Supreme Court's swing voter, Justice Anthony Kennedy, and he advised the White House lawyers at that meeting that Kennedy would probably reject the President's claim that American combatants could be denied access to a lawyer. That meeting was first reported in the Washington Post. NPR independently confirmed the details with multiple sources. Remember, Kavanaugh told Senators...

MR. KAVANAUGH: [TAPE] I was not involved and am not involved in the questions about the rules governing detention of combatants.

MR. SHAPIRO: Now Senator Durbin says he feels:

SEN. DURBIN: Perilously close to being lied to. I will just say that he might have decided that he could split the difference here and give me an answer in the negative, but he had to know he was misleading me and the committee, and the people who were following this controversial nomination.

MR. SHAPIRO: Durbin says he plans to contact Judge Kavanaugh.

SEN. DURBIN: We are going to write to him and ask that based on this contradiction in this sworn testimony, that he recuse himself from cases involving enemy combatants.

MR. SHAPIRO: Durbin says he sees no difference between the Guantanamo enemy combatant cases that Kavanaugh has ruled on and the American enemy combatant cases that Kavanaugh discussed at the White House meeting. Michael Ratner represented Guatnanamo detainees in a case before Judge Kavanaugh. He's the head of the Center for Constitutional Rights.

MICHAEL RATNER: We obviously didn't know at the time that he was on the panel that he'd had some discussions about enemy combatants and the rules for them, and we would've had to discuss whether or not it was strong enough to actually ask him to disqualify himself.

MR. SHAPIRO: There are relatively few instances where former government lawyers must recuse themselves as judges, says NYU legal ethics expert Steven Gillers. He does not believe this fits the criteria. And, Gillers says, people should not assume the worst of Kavanaugh.

STEVEN GILLERS: We have no reason fairly to infer that even if he was wrong in his answer to Senator Durbin, he was consciously wrong,

MR. SHAPIRO: Besides, Gillers says, at this point there's little one can do.

MR. GILLERS: You can't take back a confirmation, so that's final. He's a judge. And he either will or will not most likely feel any obligation to explain the contradiction.

MR. SHAPIRO: In fact, Judge Kavanaugh would not comment for this piece. A court spokesperson said in a statement, "Judge Kavanaugh's confirmation testimony was accurate, and Judge Kavanaugh will continue to carefully address recusal issues based on the law and facts of each case." Ari Shapiro, NPR News, Washington.