Supreme Court Nominations

Democrats want to know whether Kavanaugh had any role in torture and detainee policies under GW Bush

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Democrats are seeking files from the George W. Bush administration to learn whether Supreme Court nominee Brett Kavanaugh had any role in formulating policies on the treatment of detainees.

The Washington Post spoke with Sen. Richard Durbin, D-Ill., who is pursuing the issue. Durbin has said he was misled when he questioned Kavanaugh in 2006 during his confirmation hearing for a seat on the U.S. Court of Appeals for the D.C. Circuit. The Atlantic also has coverage.

Kavanaugh had been an associate White House counsel for 2001 to 2003 before he became staff secretary for Bush, who nominated Kavanaugh for the federal appeals court. During Kavanaugh’s confirmation hearing, Durbin asked Kavanaugh about another judicial nominee’s role in detention and interrogation policies.

Kavanaugh answered: “Senator, I did not, I was not involved and am not involved in the questions about the rules governing detention of combatants or—and so I do not have the involvement with that.”

Another senator asked Kavanaugh whether he saw any documents relating to the administration’s policies and practices on torture. Kavanaugh replied: “I think with respect to the legal justifications or the policies relating to the treatment of detainees, I was not aware of any issues on that or the legal memos that subsequently came out until the summer, sometime in 2004 when there started to be news reports on that. This was not part of my docket, either in the counsel’s office or as staff secretary.”

But Kavanaugh was involved in a 2002 meeting when he was asked how he thought Justice Anthony M. Kennedy would vote on an issue regarding Guantanamo detainees, according to two former White House officials who were in the meeting. The Post had first reported on the meeting in 2007.

Kavanaugh reportedly said Kennedy would favor a hearing and legal representation for the detainees. The meeting had been heated, and one lawyer at the meeting slammed his fist on a table with such force that a tray of nuts flew into the air, officials said.

One of the officials, former deputy White House counsel Tim Flanigan, spoke on the record. Both officials said they didn’t believe Kavanaugh was aware of Bush’s overall torture policy. Alberto Gonzales, who was White House counsel at the time, also told the Post that Kavanaugh did not review policy on terrorism suspects.

“I don’t recall having any conversations with Brett about torture or anything related to the war on terror,” Gonzales said. He added that it’s possible that one of the associate counsels was consulted about how a justice might react in a case.

Durbin says Kavanaugh’s participation in the meeting about Kennedy’s views conflicts with his testimony.

“It is a critical element in detention and interrogation as to whether a person is represented by counsel,” Durbin told the Post.

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