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Durbin urges federal appeals judge to recuse himself on detainee cases

[JURIST] US Sen. Dick Durbin (D-IL) [official website] on Tuesday urged federal appellate court Judge Brett M. Kavanaugh [official profile; JURIST news archive] to recuse himself in "all pending and subsequent cases involving detainees and enemy combatants," after the Washington Post reported Monday that Kavanaugh, while serving as the assistant to the president and staff secretary to President Bush, participated in discussions that formulated the administration's detainee policies [WP report]. The Post report was confirmed by NPR [NPR report], and in a letter [text] to Kavanaugh, Durbin wrote:

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 Administration'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.
Kavanaugh, initially nominated for the bench in 2002, was confirmed by the Senate [JURIST report] in May 2006 despite strong Democratic opposition.

Democrats had threatened a filibuster [JURIST report] to stop the nomination, but retreated in their efforts after Kavanaugh testified [JURIST report] that he had no role in the Bush administration's policy towards detainees or warrantless surveillance [JURIST news archives]. AP has more.

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