Bench Memos

Law & the Courts

Refuting Anti-Kavanaugh Smears—Interrogation

Another item in the Left’s litany of lies is its claim that Brett Kavanaugh testified untruthfully at the 2006 hearing on his D.C. Circuit nomination in responding to a question from Senator Durbin about what he knew about an earlier judicial nominee’s “role in crafting the [George W. Bush] administration’s detention and interrogation policies.” This claim depends entirely on stripping Kavanaugh’s response out of context and on rejecting his very sensible account of what he was addressing.

Here is the relevant portion of the exchange between Durbin and Kavanaugh (p. 27 of transcript):

Senator DURBIN.… In September 2003, the President nominated William Haynes to be a judge on the Fourth Circuit. As General Counsel to the Department of Defense, Mr. Haynes had been the architect of the administration’s discredited detention and interrogation policies. For example, Mr. Haynes recommended that Secretary Rumsfeld approve the use of abusive interrogation techniques, like threatening detainees with dogs, forced nudity, and for forcing detainees into painful stress positions. During the 108th Congress, Mr. Haynes’s nomination stalled after his involvement in this scandal came to light. Just this February, the President decided to renominate him.

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?

Mr. KAVANAUGH. 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. And with respect to Mr. Haynes’s nomination, I’ve—I know Jim Haynes, but it was not one of the nominations that I handled. I handled a number of nominations in the Counsel’s Office. That was not one of the ones that I handled.

In context, it is eminently sensible, if not indeed incontestable, to read Durbin’s closing question “about Mr. Haynes’s role in crafting the administration’s detention and interrogation policies” in the context of Durbin’s set-up for that question: his condemnation of the “administration’s discredited detention and interrogation policies,” such as “the use of abusive interrogation techniques, like threatening detainees with dogs, forced nudity, and for forcing detainees into painful stress positions.” So when Kavanaugh stated that he was “not involved in the questions about the rules governing detention of combatants,” it ought to be evident (as it was to me when I wrote point 2 in this post a month ago) that he was referring to the “discredited” policies that Durbin was objecting to. (Had Durbin had any confusion on the matter, he could have followed up to clarify at the time.)

In his hearing last week, that is exactly what Kavanaugh explained—that he understood Durbin’s question in 2006 to be probing whether Kavanaugh “was involved in the program that two other nominees [Haynes and Jay Bybee] had been involved in,” concerning “enhanced interrogation techniques for the detainees.” For Kavanaugh could not have been expected to know who participated in the highly classified program unless he himself had been read into it.

It is undisputed that Kavanaugh was not read into the program that addressed enhanced interrogation techniques for the detainees and therefore had no involvement in the program. As this Washington Post article reports, former deputy White House counsel Tim Flanigan said that the program “was tightly ‘compartmentalized’ and that Kavanaugh was not authorized to know about it,” and a second official “confirmed Flanigan’s recollection.” Further, as Kavanaugh pointed out at the hearing, the exhaustive 500-page report on the program that the Senate Select Committee on Intelligence, under the direction of Senator Feinstein, issued in 2012, does not mention Kavanaugh’s name a single time.

In sum, Kavanaugh’s 2006 testimony on interrogation was entirely truthful.

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