ROBERT SIEGEL, host:
One of President Bush's most controversial judicial nominees may have misled senators in testimony 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. Well, now it seems that statement was not entirely true.
NPR's Ari Shapiro has that story.
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 U.S. 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.
Senator DICK DURBIN (Democrat, Illinois): What was your role in the original Haynes nomination and decision to renominate it? And at the time of the nomination, what did you know about Mr. Haynes' role in crafting the administration's detention and interrogation policies?
Mr. BRETT KAVANAUGH (Judge, Federal Appeals Court): Senator, I did not - I was not involved and I'm not involved in questions about the rules governing detention of combatants. And so I didn't - do not have any involvement with that.
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 Yaser Hamdi. Kavanaugh used to clerk for the Supreme Court 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, and NPR independently confirmed the details with multiple sources. Now, remember, Kavanaugh told senators…
Mr. KAVANAUGH: I was not involved and I'm not involved in the questions about the rules governing detention of combatants.
SHAPIRO: Now, Senator Durbin says, he feels…
Sen. DURBIN: Carelessly 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 negative, but he had to know he was misleading me and the committee and the people who are following this controversial nomination.
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 his sworn testimony that he recuse himself from cases involving enemy combatants.
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 Guantanamo detainees in a case before Judge Kavanaugh. He's the head of the Center for Constitutional Rights.
Mr. MICHAEL RATNER (President, Center for Constitutional Rights): We obviously didn't know at the time that he was on the panel, that he have had some discussions about enemy combatants and the rules for them, and we would have it discussed whether or not it was strong enough to actually ask him to disqualify himself.
SHAPIRO: There are relatively few instances where former government lawyers must recuse themselves as judges, says NYU legal ethics expert Stephen Gillers. He does not believe this fits the criteria. And Gillers says people should not assume the worst of Kavanaugh.
Professor STEPHEN GILLERS (Law, New York University): We have no reason, fairly, to infer that even if he was wrong in his answer to Senator Durbin, he was consciously wrong.
SHAPIRO: Besides, Gillers says, at this point, there is little one can do.
Prof. GILLER: You can't take back a confirmation, so that's final. He's a judge. And he either will or will not - most likely will not - feel any obligation to explain the contradiction.
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.
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