In December of 2005, the New York Times dropped a bombshell report. “Months after the Sept. 11 attacks,” it read, “President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.”

Five months later, Supreme Court nominee Brett Kavanaugh — then a senior Bush White House official and a nominee for his current job as a federal appellate judge — had a confirmation hearing. In that 2006 hearing, Sen. Patrick Leahy (D-VT) asked if Kavanaugh ever saw “documents relating to the President’s NSA warrantless wiretapping program.” Kavanaugh’s response was unequivocal.

“I learned of that program when there was a New York Times story — reports of that program when there was a New York Times story that came over the wire, I think on a Thursday night in mid December of last year.” the judge-to-be claimed.

When Leahy pressed Kavanuagh, asking if the nominee heard “anything about it prior to the New York Times article,” Kavanaugh’s response was even more definitive — “nothing at all.”

There’s just one problem with Kavanaugh’s 2006 claim that he knew nothing about the program. This problem:

Some caveats are in order here. Kavanaugh’s email to Yoo, who, as the New York Times reported, “worked on a classified legal opinion on the N.S.A.’s domestic eavesdropping program” was sent less than a week after the 9/11 attack, when any discussions about this program would have been in their early stages — Bush signed an order authorizing the program in 2002. It is possible, in other words, that Kavanaugh did not know that this specific program had been authorized, even though he communicated with Yoo about the legal justification for such a program.


Kavanaugh also revised his answer to the question of how soon he learned about the program during his most recent confirmation hearing. Leahy asked Kavanaugh again on Wednesday if he ever worked with John Yoo, the torture memo author who worked in the Bush Justice Department, “on the constitutional implications of any warrantless surveillance program.” This time, Kavanaugh gave a different response.

“I can’t rule that… right in the wake of September 11?” Kavanaugh asked. “It was all hands on deck on all fronts.”

Ironically, Yoo was a guest Wednesday night on Fox News (I was also a guest in the same segment), and was asked about this more recent exchange between Leahy and Kavanaugh. “I can say categorically that Brett Kavanaugh was not working on was not in any meetings and did not work on any memos related to what became known as the ‘terrorist surveillance program,'” Yoo falsely claimed.

Yoo then proceeded to lecture Leahy, claiming that the senator “doesn’t really understand how classified programs work,” and that if Leahy only knew what Yoo knew, he would know that Kavanaugh wouldn’t have been told anything about this particular program.

Yoo can take some solace in the fact that statements made on Fox News are not made under oath. The same cannot be said about Kavanaugh’s 2006 testimony. If Kavanaugh did, in fact, lie to Senator Leahy during his 2006 hearing, he could potentially have much bigger programs than his current confirmation fight.