Bench Memos

Law & the Courts

Refuting Anti-Kavanaugh Smears—NSA’s Warrantless Wiretapping Program

Let’s go the next item in the Left’s absurd litany of lies—the claim that Judge Kavanaugh testified untruthfully at the 2006 hearing on his D.C. Circuit nomination when he stated that he did not learn of the NSA’s warrantless wiretapping program, code-named Stellarwind, until the New York Times ran a story on it in December 2005.

Unlike the Manny Miranda controversy, which is sufficiently complicated that folks who aren’t paying attention might be a bit confused, this claim is patently ridiculous.

Here is Kavanaugh’s testimony on the matter at his 2006 hearing (pp. 42-43 of transcript):

Senator LEAHY. What was your reaction—as Staff Secretary, you see virtually every piece of paper that goes to the President; is that correct?

Mr. KAVANAUGH. On many issues, yes, Senator. Not everything, but on many issues.

Senator LEAHY. Did you see documents relating to the President’s NSA warrantless wiretapping program?

Mr. KAVANAUGH. Senator, I learned of that program when there was a New York Times story—reports of that program when there was a New York Times story that came over the wire, I think on a Thursday night in mid December of last year.

Senator LEAHY. You had not seen anything, or had you heard anything about it prior to the New York Times article?

Mr. KAVANAUGH. No.

Senator LEAHY. Nothing at all?

Mr. KAVANAUGH. Nothing at all.

As this New York Times article from last week makes clear, Leahy has zero evidence to contest Kavanaugh’s 2006 testimony that he had had no knowledge of the Stellarwind program. As former Obama administration official Neal Katyal has explained, “There is always a record of everyone read into highly classified SCI [sensitive compartmented information] programs and you even have to sign a ledger.” Per the NYT article, Kavanaugh was not read into the Stellarwind program, and, as Katyal points out, it would “be easy to verify” if he had been.

Leahy surely knows that Kavanaugh was not read into Stellarwind, and he did not contend otherwise at last week’s hearing. Rather, as the NYT article discusses, Leahy cited an email dated September 17, 2001—six days after the terrorist attacks—in which Kavanaugh inquired of DOJ lawyer John Yoo: “Any results yet on the 4A [Fourth Amendment] implications of random/constant surveillance of phone and e-mail conversations of non-citizens who are in the United States when the purpose of the surveillance is to prevent terrorist/criminal violence?” Kavanaugh explained to Leahy that “it was all hands on deck on all fronts” in “farming out assignments” in the immediate aftermath of 9/11 and that any such legal inquiry on September 17 was not conducted within the Stellarwind program (which, as the NYT article points out, wasn’t initiated until October 4, 2001).

In short, Kavanaugh’s 2006 testimony on this matter was entirely truthful, and Leahy’s effort to create a fog of confusion about it should not mislead anyone.

(I repeat that I have benefited from, and am drawing on, David Lat’s excellent tweet threads on these matters.)

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