Durbin: DC judge misled Senate panel: The Swamp
The Swamp
Posted June 26, 2007 6:09 PM
The Swamp

Andrew Zajac

 D.C. Circuit Court of Appeals Judge Brett M. Kavanaugh did not disclose his participation in at least one White House discussion regarding enemy combatant issues when asked about it during his 2006 Senate Judiciary Committee confirmation hearing, NPR News is reporting today on the newsmagazine All Things Considered.

  Illinois Democratic Sen. Dick Durbin asked Kavanaugh about his role in enemy combatant discussions and says he feels "perilously close to being lied to" by Kavanaugh's response that he wasn't involved.

 Durbin wrote to Kavanaugh today asking him for an explanation of his response and requesting that he recuse himself from enemy combatant-related cases. Durbin's letter follows the NPR transcript which begins here:  

 ROBERT SIEGEL: One of President Bush's most controversial judicial nominees may have misled Senators at a crucial confirmation hearing last year. Brett Kavanaugh told Senators that when he worked as a White House lawyer for President Bush, he was not involved in enemy combatant issues. Now it seems that statement was not entirely true. NPR's Ari Shapiro reports.

 ARI SHAPIRO: Today, Brett Kavanaugh has lifetime tenure as a judge on the powerful federal appeals court here in Washington. His court gets more detainee cases than any other US court. In fact, the first case Kavanaugh ever heard as a judge was about Guantanamo detainees. When President Bush nominated Kavanaugh, Senators knew the judge would handle enemy combatant cases if confirmed. So at his confirmation hearing in May of last year, they asked him whether he worked on detainee issues at the White House. Illinois Democrat Dick Durbin questioned Kavanaugh about William Haynes, who helped develop harsh interrogation policies and was later nominated for a judgeship.

 SEN. DICK DURBIN: [TAPE] 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?

 JUDGE BRETT KAVANAUGH: [TAPE] Senator, I did not – I am not involved and was not involved in the questions about the rules governing detention of combatants. And so I do not have any involvement with that.

 MR. SHAPIRO: But in 2002, Kavanaugh WAS involved in a White House conversation about detainees. The meeting was about American enemy combatants, such as Jose Padilla and Yasser Hamdi. Kavanaugh used to clerk for the Supreme Court's swing voter, Justice Anthony Kennedy, and he advised the White House lawyers at that meeting that Kennedy would probably reject the President's claim that American combatants could be denied access to a lawyer. That meeting was first reported in the Washington Post. NPR independently confirmed the details with multiple sources. Remember, Kavanaugh told Senators...

 MR. KAVANAUGH: [TAPE] I was not involved and am not involved in the questions about the rules governing detention of combatants.

 MR. SHAPIRO: Now Senator Durbin says he feels:

 SEN. DURBIN: Perilously close to being lied to. I will just say that he might have decided that he could split the difference here and give me an answer in the negative, but he had to know he was misleading me and the committee, and the people who were following this controversial nomination.

 MR. SHAPIRO: Durbin says he plans to contact Judge Kavanaugh.

 SEN. DURBIN: We are going to write to him and ask that based on this contradiction in this sworn testimony, that he recuse himself from cases involving enemy combatants.

 MR. SHAPIRO: Durbin says he sees no difference between the Guantanamo enemy combatant cases that Kavanaugh has ruled on and the American enemy combatant cases that Kavanaugh discussed at the White House meeting. Michael Ratner represented Guatnanamo detainees in a case before Judge Kavanaugh. He's the head of the Center for Constitutional Rights.

 MICHAEL RATNER: We obviously didn't know at the time that he was on the panel that he'd had some discussions about enemy combatants and the rules for them, and we would've had to discuss whether or not it was strong enough to actually ask him to disqualify himself.

 MR. SHAPIRO: There are relatively few instances where former government lawyers must recuse themselves as judges, says NYU legal ethics expert Steven Gillers. He does not believe this fits the criteria. And, Gillers says, people should not assume the worst of Kavanaugh.

 STEVEN GILLERS: We have no reason fairly to infer that even if he was wrong in his answer to Senator Durbin, he was consciously wrong,

 MR. SHAPIRO: Besides, Gillers says, at this point there's little one can do.

 MR. GILLERS: You can't take back a confirmation, so that's final. He's a judge. And he either will or will not most likely feel any obligation to explain the contradiction.

 MR. SHAPIRO: In fact, Judge Kavanaugh would not comment for this piece. A court spokesperson said in a statement, "Judge Kavanaugh's confirmation testimony was accurate, and Judge Kavanaugh will continue to carefully address recusal issues based on the law and facts of each case." Ari Shapiro, NPR News, Washington.

--------------------------------------

 

June 26, 2007

Hon. Brett M. Kavanaugh

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

5423 E. Barrett Prettyman 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

 

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Comments

Well, what do you know...a Repug. judge lied. I'm shocked, shocked I tell you.

Kavanaugh needs to recuse himself permanently.


Ah yes,the great[?-to a lib]Illinois senator that compared our Gitmo soldiers to Pol pot,Soviet Gulage and the Nazis....
Let's review history....
*The Nazi's-Killed 9-10 Million civilians and 6 Million Jews.
*The Soviets and their Gulags-Killed and estimated 50 Million.
*Pol pot-1.5 to 2 Million.
Yes,Dick Turban Durbin-His false,lying remarks may have caused hundreds of American Soldiers deaths by inciting the enemy and betraying America.
This man is scum.

Paulo


Only Dick Durbin the Turbin would have a problem with detaining terrorists. What an embarrassment this jerk is to the state of Illinois and the people of the U.S.
If Dick loves terrorists so much, let him be a senator for the Taliban. They're more his ilk anyway.


Yes,Dick Cheney-His false,lying remarks may have caused hundreds of American Soldiers deaths by inciting the enemy and betraying America.
This man is scum.

JohnD, I have tried to give you the benefit of the doubt, but perhaps you really are as limited as Paulo.


NPR interviewed three people for this story, all of them leftwing Bush haters: Durbin, Ratner and Gillers. But they couldn't get Gillers to say that Kavanaugh did anything wrong.

"There are relatively few instances where former government lawyers must recuse themselves as judges, says NYU legal ethics expert Steven Gillers. He does not believe this fits the criteria. And, Gillers says, people should not assume the worst of Kavanaugh."

This looks like an overblown story to me.


As the above posts from Republican Party water carriers Paulo and John D show, the Republics have gone from being the "Law & Order Party" to the "Law & Order for everyone but us Party"

This another fine example of morons on the right attacking the messenger (Dick Durbin) instead of addressing the message and another reason why less and less people take the Republicans seriously now days.

I fully expect more of this same garbage from their fellow GOP followers, Sherman and Bruce.


It's gotten to the point that whenever I see
Posted by: Paulo or John D
I don't even bother to read the posts. Nothing but inflammatory trash and name calling. Do you guys get paid by Karl Rove to do nothing but sit and smear all day and night?


Ya gotta understand, juanD and pillow are very afraid that after all this time, their reich-wing propaganda is being thoroughly rejected by a HUGE majority of loyal, patriotic Americans. They have no choice but to go on the attack. Pity them, for they know not what they do, or say, or for that matter, even think. Just chuckle, like I do when they post, for it sounds like the ranting of my teenager.


The above comments by Catherine,JohnE. and Christopher Maycejak is proof positive that the looney
left have no interest in our soldiers,history or comments made by Illinois Senator Dick Turbin Durbin.
Catherine states that Dick Cheney is responsible for hundreds of soldiers lives,but yet, she doesn't know or understand we're at war and the dems,along with Republicans,voted to go to war....sorry to burst your liberal bubble.
Slime balls like these three should be tought history with a wooden paddle...Oh,sorry JohnE...How's it going in Iraq? You've been there since Feb.15,2007...but yet,you never tell us about your missions with Dale Peters son and your mommy?
Are you a trickster too???

Paulo


Yes,Dick Turban Durbin-His false,lying remarks may have caused hundreds of American Soldiers deaths by inciting the enemy and betraying America.
This man is scum.

Paulo


Posted by: Paulo | June 26, 2007 7:38 PM

If Dick loves terrorists so much, let him be a senator for the Taliban. They're more his ilk anyway.

Posted by: John D | June 26, 2007 8:29 PM

Mental illness runs rampant here in The Swamp. Proof that Kool-Aid is bad for you!!! Gentleman seek professional help.


On the one hand you just want to let the wringnuts rant and rave serving to further marginalize them. So that when the occassional Swamp reader/poster (not us regulars) stops in and reads some of the wringnut posts they shake their heads in horror and disgust.

On the other hand you know that civil discourse is better for America.

Of course the biggest problem wringnuts have with rational discourse in their lack of ammo.

Between Iraq, immigration, Dick "4th Branch" Cheney, moderate Republicans jumping ship, and so on, the wringnuts are actively participating in the implosion of the Republican Party.


Christopher, let me open your eyes some, if at all possible. From this Swamp post:
"Repug judge," weinerdog.
Morons on the right," John E.
From others:
"reichwinger," snitramic.
"chimpy mcFlightsuit," snitramic, john e., raving loon, dt, et al.
"Darth Cheney," john e., raving loon, logic prisoner, gradioc doogie zook, dt.
"wingnuts," same crowd.

I could go on and even get uglier. I could reference all the times john e and dt, have used my complete name, posted my work e-mail address, my work website because they are such weird losers they have nothing better to do.

So, when you want to talk about "name calling," better do your homework!


John D.,

You forgot CHICKENHAWKS!


So, when you want to talk about "name calling," better do your homework!

Posted by: John D | June 27, 2007 8:40 AM

Clearly you've done yours!

John you are a troubled soul. Defending a vacant ideology must be enough to drive anyone over the edge.


Catherine states that Dick Cheney is responsible for hundreds of soldiers lives,but yet, she doesn't know or understand we're at war and the dems,along with Republicans,voted to go to war....sorry to burst your liberal bubble.

Posted by: Paulo | June 27, 2007 1:31 AM

What sacrifices have you made for the war effort? Yellow ribbon magnet on your foreign car?

Certainly Cheney is far more responsible for lost lives than Durbin's statements about torture. Cheney and Bush's faux macho crap is used as recruitment material for future terrorists.


Judge Brett Kavanaugh: Pay no attention to Illinois Dickie Durbin this man grandstands perpetually. He is the sound and the fury signifying nothing. Durbin's hate for Bush is so bad he wants to give foreign Islamic Jihadists American civil rights. Instead of wanting to stop harm to America and Americans he with his gigantic mouth is a threat to our security. He has called for Don Rumsfeld, a fellow Illinoisan to resign ditto to Albert Gonzales, Dick Cheney and any other patriot he hates to resign. But, Judge pay no attention I have called for Durbin to resign and he is so blinded by his own ego he just goes on and on. Ignore him everybody else does Judge.Jerry White, Springfield, IL


We have two personalities for Doug Zook it seems. One is Doogie, who calls Cheney "Darth," and uses wingnuts in an effort to say we are "marginalizing" ourselves (the reality Doogie, is that the Loony Left marginalizes themselves and have for years and years and years). Then we have Doug Zook, who credits the president and First Lady for their African efforts and knocks Chavez lovers. Doug Zook is much better than Doogie Zook.


Attack politics was perfected by the Nixon Administration to win the Southern vote. Ken Mehlman admitted this in a speech last year before the NAACP in, oh, Georgia or Mississppi somewhere. You can look it up. He APOLOGISED to the audience and said the Republican party was sorry for using these tactics and they would not do it again. Of course, it was all about the election for k-head, and, obviously, it didn't make a difference. So next time someone wants to say us loony lefties (and PROUD OF IT) started it, go check you head with the rnc leaders. They know who is responsible for the low level of civil discourse in this country.


The reason why many of us Liberals have descended into the sewer (or Swamp if you will) is because the Reich wingers require it. For 20 years, Rush Limbaugh, Bill O'Reilly, Ann Coulter, etc... have been spewing non stop with no push back from our side.

Well, we've had enough. If you wrestle with pigs, you're going to get dirty. The Swamp is tame. Even Atrios and Daily Kos are mostly mild, (although they do use naughty language). If you want rascist, homophobic, hate speech, take a visit over to Little Green Footballs, Free Republic or Powerline. You will see regular expositions favoring torture, murder, genocide and the like. Express a different opinion will get you banned.

No, we're stuck wrestling with the pigs here at The Swamp because someone has to.


OK Johnny - you and the rest of your buddies are soooooooooooo innocent in your name calling, aren't you?

The truth is that whenever a liberal posts on this blog, they first thing you right-wingers do is either call them the loony left, or attack the messenger. Just like Rush, Hannity, O'Reilly and the rest at Fox News.


BobbinATL, yes, I do namecall, but almost always in response to your ilk. Besides as I've stated over and over, "loonjy left" does not apply to all liberals or those left of center. But if the shoe fits. . . .


Good points, WD43. We may be slow, but at least can now see that the low road is what works in American politics.

Jerry: Thanks for the ceaseless entertainment. Dick Cheney can gain comfort from knowing that, if he were caught raping children, he'd still have at least one supporter from the heartland.


Ummm Jerry? Rumsfeld did resign - remember??

And again, you still have not answered my challenge - what good has Gonzalez done as AG??


Paulo and/or John D:

Where would you find evidence of detainees who have been sodomized by broomsticks and other blunt objects?
a)Soviet gulags
b)Pol Pot's regime
c)Nazi concentration camps
d)American detention facilities
e) all of the above

*bonus Question*
Which answer should be ashamed to find itself in the company of the others listed in the above question?

The fact that you two clowns don't have a problem with the correct answer being e) for the first question only shows who loves America and who wants our country to become inhuman and sadistic animals.


Rummie didn't resign. He was fired by the American people for screwing up the IRaq occupation. Chimpy and McDick are next.


Beverly Hillbilly Jethro, while I fully believe the LITTLE bit of nonsense that took place at Abu Graib was dumb and stupid and ignorant, it still does not even come close to entering the same level as Pol Pot, Nazis, Soviets, Darfur, Uganda, etc.
See, Doogie wants to know what is mainstream and not mainstream. Doogie, Jethro here is NOT mainstream!


Who said it was on the same level? You did. Not me or Durbin. The point is whether its in the hundreds, thousands, or single digits, when you treat people inhuman you become inhuman yourself. Torture and degrading humans should be denounced on all levels.


Ohh, Johnny D, even you can't be so dense as to believe that what happened at Abu Ghraib is the linits of our use of torture. That wasn't even the tip of the iceberg.

Your hero, Vice-President Cheney, has been a very busy man, redefining "torture" to mean only techniques whic cause pain as sever as organ failure or death. Your hero, President Bush has made use of former Soviet detention centers in Eastern Europe as CIA interrogation and torture centers. That's just the stuff they admit.

Read and learn my deluded little friend.

http://www.msnbc.msn.com/id/19403183/

http://www.washingtonpost.com/wp-dyn/content/article/2005/11/01/AR2005110101644_pf.html

http://www.washingtonpost.com/wp-dyn/content/article/2005/08/02/AR2005080201941_pf.html


Johnny-

Is torturing a man to death "a LITTLE bit of nonsense"?

http://www.washingtonpost.com/wp-dyn/content/article/2005/08/02/AR2005080201941_pf.html

It is this administration's assertion that it only becomes torture to mean only suffering "equivalent in intensity" to the pain of "organ failure ..... or even death."

Is pain just short of the pain of organ failure or even death a "LITTLE bit of nonsense"?

http://blog.washingtonpost.com/cheney/chapters/pushing_the_envelope_on_presi/index.html


Jethro, to be honest if some head-chopping terrorist was abused or tortured I couldn't care less. Have you ever seen the video of Nick Berg getting his head cut off? I watched it and was sickened to my very core. I watched another one too. Will never allow myself to watch that again, but the one benefit to watching that grotesque display of human nonsense is it teaches you what these people are about and who they are. You realize they are not human on any level, they are evil personified. So if some head chopper gets a broomstick up his butt or gets waterplowed or whatever it's called, I don't care!


Jethro, to be honest if some head-chopping terrorist was abused or tortured I couldn't care less. Have you ever seen the video of Nick Berg getting his head cut off? I watched it and was sickened to my very core. I watched another one too. Will never allow myself to watch that again, but the one benefit to watching that grotesque display of human nonsense is it teaches you what these people are about and who they are. You realize they are not human on any level, they are evil personified. So if some head chopper gets a broomstick up his butt or gets waterplowed or whatever it's called, I don't care!

Posted by: John D | June 27, 2007 3:13 PM

And this makes you morally different than Nick Berg's killers...how?


Sorry, John D. The "anonymous" 3:32 post was mine (which doesn't make it much less anonymous I suppose)

The point, of course, is that I think the U.S. needs to hold itself to a higher standard than that of terrorists and other such criminals. You evidently disagree.


Anonymous, right or wrong, but frankly I have no sympathies for a head chopper. Perhaps you should search the web so you can view one of the head-chopping videos. You might think a little differently.


John, seriously man, you claim to be a Christian. How can you condone torture and still claim to be a follower of Christ, himself an innocent victim of torture?

Like Pilate, you wash your hands of the whole thing.


Who is this John D, and why does he hate America?


Tony, so far no one has been an innocent victim of torture by our hands. But please use that argument to those who had their heads cut off by terrorists or those who were incinerated when planes flew into buildings or those blown to bits on the trains in Madrid and Bali and London. Please tell those innocent folks your beliefs, OK?
And, Tony, Christian beliefs do teach love, forgiveness and tolerance. But it doesn't mean one should bend over and ankles either.


"Tony, so far no one has been an innocent victim of torture by our hands."

And you know that how Johnny D? Because they were picked up in the middle east? Because they were islamic? How do you know none of them were innocent?

Let's listen to Lt. Col. Stephen Abraham, a 26-year veteran of military intelligence who took part in the Gitmo tribunals:

"Despite repeated requests, intelligence agencies arbitrarily refused to provide specific information that could have helped either side in the tribunals, according to Abraham, who said he served as a main liaison between the Combat Status Review Tribunals and the intelligence agencies.

"What were purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence," Abraham said in the affidavit submitted on behalf of a Kuwaiti detainee, Fawzi al-Odah, who is challenging his classification as an "enemy combatant."

Let's talk about General Mowhoush. He had turned himself into the US army. He had been cooperating with the interrogations. But he wasn't telling the interrogators what they wanted to hear. As a result he ended up dead. Was that justified Johnny? Was that smart? How likely is an Iraqi to cooperate with US forces if he knows he may be beaten to death even if he cooperates?

Torture is wrong Johnny. It's a sin, it's evil. No matter who does it. Jesus isn't going to say at the last Judgement, "What so ever you do to the least of my children you do unto me, unless it torture, that's okie dokie!"


"Christian beliefs do teach love, forgiveness and tolerance." Yes they do. Including do unto others as you would have done unto you. "But it doesn't mean one should bend over and ankles either." And that spells out condoning torture to you. Interesting.


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