[Washington, DC]- U.S. Senator Dick Durbin (D-IL) today sent a letter to U.S. Court of Appeals Judge Brett Kavanaugh calling on him to recuse himself from all cases involving the treatment of enemy combatants. Durbin also asked Judge Kavanaugh to explain discrepancies between testimony he gave to the Senate Judiciary Committee and recent news accounts of his role in developing rules governing the treatment of detainees.

Revelations in yesterday’s Washington Post strongly indicate that Mr. Kavanaugh’s testimony on May 9, 2006 before the Senate Judiciary Committee that “I was not involved in the questions about the rules governing detention of combatants” was misleading.

In the letter he sent to Kavanaugh today, Durbin wrote: “In light of the Washington Post and National Public Radio reports, your sworn testimony appears inaccurate and misleading.  You participated in a critical meeting in which the Administration made a decision on whether to extend access to counsel to detainees, an issue that is clearly a “rule governing detention of combatants.”  By testifying under oath that you were not involved in this issue, it appears that you misled me, the Senate Judiciary Committee, and the nation.

“Therefore, I request that you provide the Senate Judiciary Committee with an explanation for this apparent contradiction. In addition, I request that you disqualify yourself in all pending and subsequent cases involving detainees and enemy combatants.  Your lack of candor at your nomination hearing suggests you cannot approach these cases with impartiality and an open mind.”

Kavanaugh was confirmed for a lifetime appointment on the U.S. Court of Appeals for the D.C. Circuit on May 26, 2006 by a vote of 57-36. Kavanaugh was controversial because he had spent his legal career as a political foot soldier for the Bush Administration and Republican Party.  He never had a jury trial or bench trial before becoming a judge and had less experience than any judge ever nominated to the D.C. Circuit during its 113-year history other than Ken Starr.  Durbin opposed his nomination.

The D.C. Circuit is the most important federal court in the U.S. after the Supreme Court.  Under the Detainee Treatment Act and the Military Commissions Act, the D.C. Circuit has exclusive jurisdiction over detainee and torture litigation.

Text of the letter appears below:

June 26, 2007

Hon. Brett M. Kavanaugh

U.S. Court of Appeals for the District of Columbia Circuit

5423 E. Barrett Prettman U.S. Courthouse

333 Constitution Ave., N.W.

Washington, D.C. 20001

Dear Judge Kavanaugh:

Yesterday the Washington Post published a lengthy article about Vice President Cheney’s role in the policymaking process of the Bush Administration. In this article, you are reported to have participated in a "heated" White House meeting in 2002 about whether U.S. citizens who had been declared enemy combatants should be given access to lawyers. The information in this article was confirmed today by a report on National Public Radio.

These reports appear to contradict sworn testimony you gave to the Senate Judiciary Committee on May 9, 2006 at your nomination hearing. At that hearing, I asked you about the role you played, as one of the President’s top White House lawyers, in the selection of William Haynes, a controversial nominee to the U.S. Court of Appeals for the Fourth Circuit and proponent of permissive policies with regard to torture. 

I asked: "What did you know about Mr. Haynes’s role in crafting the Adminstration’s detention and interrogation policies?"

You testified: "Senator, I did not – I was not involved and am not involved in the questions about the rules governing detention of combatants – and so I do not have the involvement with that."

In light of the Washington Post and National Public Radio reports, your sworn testimony appears inaccurate and misleading. You participated in a critical meeting in which the Administration made a decision on whether to extend access to counsel to detainees, an issue that is clearly a "rule governing detention of combatants." By testifying under oath that you were not involved in this issue, it appears that you misled me, the Senate Judiciary Committee, and the nation.

Therefore, I request that you provide the Senate Judiciary Committee with an explanation for this apparent contradiction.

In addition, I request that you disqualify yourself in all pending and subsequent cases involving detainees and enemy combatants. Your lack of candor at your nomination hearing suggests you cannot approach these cases with impartiality and an open mind.

The federal judicial recusal statute, 28 U.S.C. 455, sets forth numerous conditions in which a federal judge must seek recusal. One of these conditions appears to apply to you. It states that a federal judge should disqualify himself in any proceeding "in which his impartiality might reasonably be questioned."

The court on which you serve, the U.S. Court of Appeals for the District of Columbia Circuit, has exclusive jurisdiction to hear cases under the Detainee Treatment Act and Military Commissions Act. I hope you will recuse yourself in cases involving these and other statutes that come before you during your service on this court.

Please respond to this letter at your earliest convenience.

Sincerely,

Richard J. Durbin

United States Senator