Bench Memos

Law & the Courts

NYT Article Gets Kavanaugh Email Wrong

A New York Times headline blares “Kavanaugh Had Role in a Bush White House Debate About Terrorism Suspects, Email Shows.” The article below the headline insinuates that there is some sort of conflict between the email and Judge Kavanaugh’s testimony at his 2006 hearing on his D.C. Circuit nomination that he was not involved in “questions about the rules governing detention of combatants.”* But any such conflict is an illusion built on confusion.

The email chain, reproduced in the article, contains two emails, both dated November 19, 2001. In the first, Pat O’Brien of the Justice Department’s Office of Legislative Affairs informs Kavanaugh (who was then in the White House Counsel’s office) of a Senate Judiciary Committee hearing on December 6 “on post 9/11 actions by the Justice Department,” including on the topics of “military tribunals, monitoring of atty/client conversations, racial profiling, etc.” O’Brien requests that White House lawyers assist in preparing the Attorney General for the hearing. In the second email, Kavanaugh forwards the first email to his colleague Bradford Berenson and states: “I am happy to help out with this on the attorney-client issue, but you should obviously handle tribunals.”

The “attorney-client issue” here had nothing to do with detained enemy combatants. Rather, it concerned inmates in federal prisons. As the Times article itself explains several paragraphs in:

At the time, the Justice Department had attracted controversy by informing a small number of federal prisoners that their conversations with lawyers were subject to monitoring to ensure they would not pass on messages to terrorists.

The DOJ talking points from November 2001, included in the same document release at pp. 780-781 (stamped REV_00081190-91), confirm this understanding.

In short, there is no story here.

* Update (6:15 p.m.): A revised version of the article has somewhat muddled the insinuation.

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