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
Source: Senator Dick Durbin