A prominent privacy rights organization says senators must delay confirmation of Supreme Court nominee Brett Kavanaugh until after they review newly identified documents on his role establishing Bush-era surveillance programs -- a request endorsed Thursday by two Democratic senators.
The Electronic Privacy Information Center sought the last-minute delay in a Wednesday night letter to Senate Majority Leader Mitch McConnell, R-Ky., and Senate Minority Leader Chuck Schumer, D-N.Y., after being told of the existence of unreleased documents held by the National Archives.
McConnell invoked cloture at about the same time, setting in motion a possible Kavanaugh confirmation vote this weekend, after the FBI reviewed sexual assault claims against the judge.
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EPIC president Marc Rotenberg said the National Archives indicated around 5 p.m. Wednesday that it possesses records that could confirm if Kavanaugh misled senators about his role in post-9/11 surveillance programs. EPIC is suing the Archives under the Freedom of Information Act.
“The only pieces that are missing are the underlying records, which we expect to be released very soon," Rotenberg told the Washington Examiner, describing the new information as "extraordinary" in what it suggests.
An Archives attorney indicated there were 11 emails between Kavanaugh and Bush administration lawyer John Yoo between September 2001 and February 2002, and 227 hits for Kavanaugh emails containing “Patriot Act” or “surveillance."
Kavanaugh's stance on privacy matters alarms mass surveillance opponents, largely because of a 2015 opinion he wrote upholding the National Security Agency's dragnet collection of domestic call records. His role in earlier programs as a Bush White House attorney, before he joined the U.S. Court of Appeals for the D.C. Circuit, is less well understood.
Kavanaugh has downplayed his role in Bush-era surveillance programs, leading to perjury accusations from some Democrats. In his 2006 confirmation hearing to be a federal judge, Kavanaugh told Sen. Patrick Leahy, D-Vt., he first heard of a program that intercepted U.S.-based international phone calls and emails without a warrant when he read a December 2005 article in the New York Times.
A Sept. 17, 2001, email leaked to the media last month, however, indicates that Kavanaugh emailed Yoo, asking if there were “any results yet” on Fourth Amendment analysis of “random/constant surveillance of phone and email conversations of noncitizens who are in the United States ... to prevent terrorist/criminal violence.”
Defenders of Kavanaugh say there's no evidence he was "read into" the warrantless wiretapping program that ultimately was established, despite evidence that he was involved in discussing its legal grounding.
But Rotenberg said that the existence of additional emails between Kavanaugh and Yoo appears to further contradict his 2006 testimony.
“The evidence indicated in the disclosure yesterday was that he was literally in on the ground floor of the program,” Rotenberg said. "For him to say to Sen. Leahy in 2006 that he had no knowledge of the warrantless wiretapping program and for us to learn yesterday that there were about a dozen emails to John Yoo in 2001 likely regarding that program facially suggests a contradiction. But, of course, you can’t answer that question until you look at the emails."
A White House spokesman did not immediately respond to an email requesting comment, and Yoo said he's "dubious that these emails have anything to do with the warrantless surveillance program," but that "I cannot tell without seeing the emails."
"Kavanaugh could not have worked on the warrantless surveillance programs," Yoo said. "[But] he could well have worked on the Patriot Act, which went classified and had no authorization in it for such programs."
With control of the Senate closely divided, individual Republican senators have an outsized ability to delay proceedings. Sen. Jeff Flake, R-Ariz., secured a one-week delay by saying he was uncomfortable proceeding without an FBI review of sexual misconduct allegations. Federal agents reportedly found no corroboration, but Democrats attack the investigation's scope.
Spokespeople for Republican Sens. Rand Paul of Kentucky and Mike Lee of Utah, mass surveillance opponents who have endorsed Kavanaugh, did not respond to requests for comment on EPIC's bid for a delay.
Sen. Ron Wyden, D-Ore., another prominent mass surveillance opponent, sent a statement to the Examiner, saying, “This is yet another area where Brett Kavanaugh’s record is being concealed from the American people."
"It is extremely troubling that the public is unable to know the extent of Kavanaugh’s involvement in illegal surveillance before he’s rushed through for a lifetime seat on the Supreme Court," Wyden said. "Records that have been made public, however, show that Kavanaugh was involved in discussions about surveillance, in direct contradiction to his testimony to the Judiciary Committee. The Senate should not confirm a nominee who has gone to such great lengths to hide his views and lie about his record on crucial Fourth Amendment issues."
Leahy, a former chairman of the Senate Judiciary Committee, said in an emailed statement that the revelation of unreleased documents "highlights how little we know about Judge Kavanaugh’s record," as many Bush-era records aren't public.
"The fact that he appears to have had so many conversations about a topic that he denied having involvement with, under oath, raises even more questions," Leahy said. "If this process were designed to find the truth we would be answering those questions before rushing to a vote.”
Rotenberg said EPIC is not motivated by partisan politics and has in the past praised Republican-nominated Justice Samuel Alito for a college thesis on privacy rights and raised concerns about Democrat-nominated Justice Elena Kagan's record with airport scanners that optically disrobed passengers.
“There’s a lot of noise right now around this nomination, but this is one of the key substantive issues that the Judiciary Committee has in the past acted on,” Rotenberg said. "There’s still time. Get the documents from the archives, and make them available to the public and the senators."