Privacy Group Sues Archives for Kavanaugh Surveillance Records

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By Sara Merken

A privacy rights group has filed a federal lawsuit seeking records related to U.S. Supreme Court nominee Brett Kavanaugh’s involvement in the George W. Bush administration’s government surveillance programs.

The Electronic Privacy Information Center filed the claim Sept. 17 under the Freedom of Information Act in a bid to force the U.S. National Archives and Records Administration to release the records. Kavanaugh served in various White House roles between 2001 and 2006 during enactment of the Patriot Act and while the Bush administration was conducting warrantless surveillance for counter-terrorism purposes.

“The public has an exceptional interest in knowing the extent to which Judge Kavanaugh was involved in the secret expansion of the Patriot Act and the warrantless surveillance program, and whether he has lied to or misled the Senate about his involvement in sworn testimony,” EPIC said in its complaint.

Spokespeople for the National Archives and the White House didn’t immediately respond to Bloomberg Law’s requests for comment.

Unsatisfied Requests

EPIC submitted two FOIA requests to the National Archives but has not received any records, the group said in its complaint.

The group alleged that Kavanaugh said in 2006 Senate testimony on his nomination to the U.S. Court of Appeals for the District of Columbia Circuit that he didn’t know anything about the warrantless wiretapping program, which was carried out in secret until 2005. His White House email communications and records related to the program have not been made available to the public, the group alleged.

Sen. Richard Durbin (D-Ill.) asked Kavanaugh Sept. 10 in writing to describe his involvement in questions on warrantless surveillance while working at the White House. Kavanaugh said that in the wake of Sept. 11, 2001, “it was ‘all hands on deck’ in the White House and in the White House Counsel’s Office,” he said in a written response.

“While I do not have specific recollections, I cannot rule out having discussed warrantless surveillance generally in the wake of the attacks. I believe everyone was discussing actions to protect America from attack,” Kavanaugh responded. He further added that he did not know about the surveillance program until it became public in 2005, as he explained in the 2006 testimony, he said.

The case is Electronic Privacy Information Center v. U.S. National Archives and Records Administration, D.D.C., Civ. Action No. 18-2150, filed 9/17/18

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