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.

Most Popular

Film & TV

Celebrity Activists Do Not Help

Michelle Williams, an actress, has decided to become a spokesman on the issue of pay inequality in her profession, and appears this month on the cover of Vanity Fair with a headline to that effect. This decision follows what she describes as a humiliating episode in which she learned in the pages of USA Today ... Read More

Washington in the Flesh, Almost

Canova's George Washington at the Frick Collection is the zenith of the museum's signature exhibition style. It's small, fewer than 20 objects. It's focused. It examines the creation of Antonio Canova's full-length sculpture of George Washington in Roman costume from 1821. It was Canova's (1757–1822) sole ... Read More