PATRICK J.

LEAHY, VERMONT, CHAIRMAN

EDWARD M. KENNEDY, MASSACHUSETTS ARLEN SPECTER,PENNSYLVANIA
JOSEPH R. BIDEN, JR., DELAWARE ORRIN G. HATCH, UTAH
HERB KOHL, WISCONSIN CHARLES E. GRASSLEY, IOWA
DIANNE FEINSTEIN, CALIFORNIA JON KYL, ARIZONA
RUSSELL D. FEINGOLD, WISCONSIN
CHARLES E. SCHUMER, NEW YORK
RICHARD J. DURBIN, ILLINOIS
JEFF SESSIONS, ALABAMA
LINDSEY O. GRAHAM, SOUTH CAROLINA
JOHN CORNYN, TEXAS
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BENJAMIN L. CARDIN, MARYLAND SAM BROWNBACK, KANSAS
SHELDON WHITEHOUSE, RHODE ISLAND TOM COBURN, OKLAHOMA
COMMITTEE ON THE JUDICIARY

BRUCEA. COHEN,Chief Counsel and Staff Director WASHINGTON. DC 20510-6275

MICHAELO'NEILL,Republican Chief Counsel and Staff Director

June 27,2007

The Honorable Alberto Gonzales

Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530

Dear Attorney General Gonzales:

I write with respect to an issue that has come to my attention regarding troubling
evidence that a witness, Brett M. Kavanaugh, may have testified falsely before the
Judiciary Committee at his May 9, 2006 judicial confirmation hearing and in response to
written follow-up questions from Senators. I refer this matter to the Department of
Justice for investigation and any prosecutorial action the Department determines to
be warranted.

When he appeared before the Committee on his nomination to the United States Court of
Appeals for the D.C. Circuit, Mr. Kavanaugh testified that he was not aware of the
Administration's legal justifications relating to the treatment of detainees until it became
public in 2004. For example, in response to a question from me, Mr. Kavanaugh
testified:

I think with respect to the legal justifications or the policies relating to the
treatment of detainees, I was not aware of any issues on that or the legal
memos that subsequently came out to the summer -- sometime in 2004,
when there started to be news reports on that. This was not part of my
docket, either in the counsel's office or as staff secretary.

In response to a question from Senator Durbin regarding Mr. Kavanaugh's knowledge of

William Haynes' role as general counsel to the Department of Defense in crafting the
Bush Administration's detention and interrogation policies, Mr. Kavanaugh testified:

Senator, I was not involved and am not involved in the questions about the
rules governing detention of combatants. And so I do not have any
involvement with that.

Mr. Kavanaugh never corrected this testimony or similar testimony in response to other
questions during the hearing.
The Honorable Alberto Gonzales
June 27,2007
Page 2 of2

To the contrary, Mr. Kavanaugh's responses to written follow-up questions from Senator
Durbin reinforced the impression that Mr. Kavanaugh had no awareness or involvement
in the legal justifications for the policy on detainees until it became public. He was
subsequently reported out of Committee with a favorable recommendation and confirmed
to the D.C. Circuit.

Recent news reports contradict Mr. Kavanaugh's testimony, detailing his involvement in
discussions over the legality of these policies in the White House Counsel's Office at
least as early as 2002, during your tenure as White House Counsel. According to a
June 25,2007, article in the Washington Post and a June 26 report on National Public
Radio, Mr. Kavanaugh took part in discussions by White House lawyers in 2002 about
whether the Supreme Court would uphold the Administration's detention policies. Both
reports confirm that Mr. Kavanaugh advised that Justice Anthony Kennedy, for whom he
had served as a law clerk, would reject presidential discretion to lock up U.S. citizens as
enemy combatants without representation by counsel.

I take the inconsistency between these news reports and Mr. Kavanaugh's testimony very
seriously. False testimony by any witness is troubling and undermines the Senate's
ability to fulfill its constitutional duties on behalf of the American people. But my
concern is heightened because the subject matter of the possibly false testimony was
highly controversial and played a critical role in many Senators' consideration of Mr.
Kavanaugh's nomination for a lifetime appointment to one of the courts most involved in
reviewing those very same detention policies. For these reasons, I have no choice but to
refer the matter to you for appropriate investigation and prosecutorial action.

Cc: The Honorable Jeffrey A. Taylor

United States Attorney, District of Columbia