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Kavanaugh’s role in Bush-era detainee debate now an issue in his Supreme Court nomination

At a 2006 hearing, Brett Kavanaugh said, "I was not involved and am not involved in the questions about the rules governing detention of combatants." (Video: C-SPAN)

Brett M. Kavanaugh was adamant as he sat in the witness chair at his 2006 confirmation hearing to be an appeals court judge. Kavanaugh was being questioned by Democrats about his knowledge of President George W. Bush’s torture policy and treatment of detainees while he served as associate White House counsel.

He responded that he was “not involved” in “questions about the rules governing detention of combatants.”

Senate Democrats have never fully accepted Kavanaugh’s answers to questions about one of the Bush administration’s most controversial policies, and now they are prepared to resurrect the issue as Kavanaugh faces a hearing as President Trump’s Supreme Court nominee.

Sen. Richard J. Durbin (D-Ill.), whose questions in 2006 elicited Kavanaugh’s denial, said in an interview this week that “what he told us under oath is not accurate.” Democrats are seeking Bush White House files to pin down specifics of any Kavanaugh involvement in detainee policy discussions, which could slow the Trump administration’s hope to have Kavanaugh confirmed before the Supreme Court reconvenes Oct. 1.

Kavanaugh was involved in at least one contentious meeting at the Office of White House Counsel in 2002, and two former White House officials detailed his role in interviews this week with The Washington Post. Bush was then developing his policy on detention and interrogation of terrorism suspects, and Kavanaugh was asked to interpret an important question about how the detainee policy was likely to be viewed in a Supreme Court challenge, specifically by Justice Anthony M. Kennedy, for whom he had served as a clerk.

Kavanaugh weighed in on how he thought Kennedy would vote on whether certain detainees should be denied a chance to be heard and have legal counsel, according to the other participants.

Kavanaugh had already been confirmed for the circuit court when the White House meeting became public in a Post report. Democrats including Durbin have sought ever since to question Kavanaugh about whether he misled the Senate Judiciary Committee.

Kavanaugh declined an interview request. White House spokesman Raj Shah said in a statement that “Judge Kavanaugh’s testimony accurately reflected the facts.”

The two former White House officials who were in the meeting with Kavanaugh said they don’t think Kavanaugh was in the loop on Bush’s overall torture policy. One of those officials, former deputy White House counsel Tim Flanigan, said that the policy was tightly “compartmentalized” and that Kavanaugh was not authorized to know about it. The second official agreed to speak only on the condition of anonymity and confirmed Flanigan’s recollection.

Durbin said that there is a conflict between Kavanaugh’s testimony that he was not involved in rules governing detainees and his participation in a meeting about whether detainees should be given legal counsel. “It is a critical element in detention and interrogation as to whether a person is represented by counsel,” Durbin said.

Sen. Patrick J. Leahy (Vt.), a Democrat on the Judiciary Committee, echoed Durbin’s concern, saying in a statement to The Post that Kavanaugh “held high-level positions within the White House, and he reportedly weighed in on how his former boss, Justice Kennedy, would rule on detainee treatment issues. Yet he claimed he had no knowledge of the torture policies of the Bush Administration during his 2006 confirmation hearing before the Judiciary Committee. This is precisely why this document production is so crucial in this confirmation process.”

Kavanaugh served as associate counsel from 2001 to 2003, a time when Bush developed policies that led to interrogation techniques such as waterboarding, raising constitutional issues that were hotly debated within the administration and before the courts.

Former White House counsel Alberto R. Gonzales told The Post that Kavanaugh’s role did not involve reviewing 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, adding, “It is possible we may have consulted one of the associate counsels for their view on how a justice might react” to a case brought by the administration.

That is what happened one day in 2002, according to the two former officials who worked with Kavanaugh in Gonzales’s office.

In the wake of the attacks of Sept. 11, 2001, the Bush administration imprisoned those who were deemed enemy combatants at the U.S. military base at Guantanamo Bay, Cuba. Some within the Bush administration said that the detainees should not be allowed to have legal representation. They said that the detainees weren’t entitled to it and feared that it would inhibit efforts to interrogate the detainees about possible terrorism plots.

The question was deemed likely to go to the Supreme Court, leading to discussion within the counsel’s office about how the case would fare — and Kennedy’s likely role as a swing vote.

Kavanaugh and another member of the legal team, Brad Berenson, had been Kennedy clerks. Berenson argued at the meeting that Kennedy would not accept the concept of denying detainees the right to be heard and have legal representation and that the case would be lost, according to a meeting participant. Berenson declined to comment.

David Addington, counsel to Vice President Richard B. Cheney, argued that the combatants were being held outside the United States and were not entitled to counsel, the participant said. Addington did not return a call seeking comment.

As Berenson and Addington got into a heated exchange, Berenson asked for Kavanaugh to join the conversation. Kavanaugh said he agreed with Berenson that Kennedy would favor a hearing and legal representation for detainees, according to the two former White House officials. The argument became so loud and heated that one of the lawyers slammed his fist on the table, causing a tray of nuts to fly into the air. A White House secretary knocked on the door to ask whether everything was all right, a participant said.

Addington’s view prevailed as White House policy, enabling the administration to spend months interrogating Guantanamo Bay prisoners. Subsequently, the Supreme Court issued rulings that effectively said Guantanamo Bay detainees had a right to a hearing.

In the 2006 confirmation hearing, Durbin asked Kavanaugh whether he had played a role in preparing the judicial nomination of a person who had worked on Bush’s “detention and interrogation policies.” Kavanaugh prefaced his response by saying that he was “not involved in the questions about the rules governing detention of combatants.” He then said he did not work on the specific nomination Durbin was questioning.

A White House official, who spoke on the condition of anonymity because he was not authorized to speak on the record, said Durbin’s line of questioning was about controversial torture policies and not specifically about whether detainees should be heard and have legal representation — the issue that has since arisen. But Durbin said it was significant that Kavanaugh volunteered the denial.

Kavanaugh’s nomination was approved 57 to 36. He is now nominated to fill Kennedy’s seat on the court.

The Post report in 2007 mentioned that Kavanaugh had participated in the discussion about whether detainees should have legal counsel. Soon afterward, Durbin and Leahy protested that they had been misled.

Leahy, who was then committee chairman, wrote to Gonzales, who was then attorney general, about the “inconsistency” of the “possibly false testimony,” which “played a critical role in many Senators’ consideration of Mr. Kavanaugh’s nomination.” He asked Gonzales to investigate.

Ten months later, on March 19, 2008, Brian A. Benczkowski, principal deputy assistant attorney general, responded that the Public Integrity Section of the Criminal Division “reviewed this matter and determined that there was not a sufficient basis to initiate a criminal investigation.” Benczkowski last week was approved on a nearly party-line vote of 51 to 48 to head the criminal division over the objections of Democrats who expressed concerns about work in private practice for a Russian bank.

The Bush administration’s detainee policy developed in two main phases. The first happened when Gonzales sent Bush a memo in February 2002 that said the Geneva Conventions did not apply to detainees being held at Guantanamo Bay. Then, in August 2002, the administration produced what has since become known as the “torture memo,” which said that torturing suspected al-Qaeda terrorists “may be justified” and that international laws against torture may not apply.

On June 12, 2004, five days after the torture memo was revealed by The Post, a White House official forwarded an email to Kavanaugh — who by then had become Bush’s staff secretary — outlining the public relations strategy for explaining the memo. The email, released by the George W. Bush Presidential Library, said that Bush “has never considered authorizing torture under any circumstances.” Those talking points were then repeated by administration officials on Sunday talk shows.

An outcry ensued over the memo, and the administration eventually rescinded it. Kavanaugh, asked about the policy at his 2006 confirmation hearing, said he had not been aware of the memo until it was disclosed in June 2004. Asked in a written follow-up about whether he agreed with the torture memo, he said, “I do not agree with the legal analysis in the memorandum, including with respect to the definition of torture.”

In his 12 years on the federal bench, Kavanaugh has voted in a number of cases related to the detention of terrorism suspects. Stephen Vladeck, a University of Texas law professor who has written about Kavanaugh’s rulings, said Kavanaugh would be “very deferential to the executive branch” on matters such as detainee policy. Vladeck said that although Kennedy was a swing vote on such matters, “if there’s going to be a fifth vote to decide these cases, it is not going to be Kavanaugh.”

Emma Brown contributed to this report.