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WASHINGTON — The confirmation process for Supreme Court nominee Brett Kavanaugh could answer a question first raised more than a decade ago about whether the judge once misled Congress, as two senators then alleged.
In 2006, when Kavanaugh was up for confirmation for his current job as a judge on the D.C. Circuit Court of Appeals, he denied under oath having any involvement in formulating the controversial terrorism detainee policy while working in the Bush White House.
A media report later cast some doubt on that denial, leading two Democrats on the Senate Judiciary Committee to accuse Kavanaugh of having "misled me, the Senate Judiciary Committee and the nation," as Sen. Dick Durbin, D-Ill., wrote in a 2007 letter to Kavanaugh.
The Department of Justice reviewed the matter and said there was not enough evidence to investigate Kavanaugh for giving false statements to Congress, which is a crime.
Now, the question is being revived by the lawmakers ahead of the release of reams of new documents that will offer a much wider window into Kavanaugh's work for the Bush White House as it pushed legal boundaries while trying to respond to the threat of terrorism after the Sept. 11 attacks.
Sen. Pat Leahy, D-Vt., said last week that he still questions how truthful Kavanaugh was during his 2006 confirmation hearing regarding his involvement in Bush-era detention policies.
Hina Shamsi, the director of the National Security Project at the American Civil Liberties Union, said she hopes that the thousands of memos, emails, notes and other records likely to be included in the documents will shed more light on the matter, since she believes Kavanaugh was not forthcoming.
"He served in the White House in the immediate aftermath of 9/11, when some of the Bush administration's most controversial national security initiatives were launched," Shamsi said. "The public should see all documents from Judge Kavanaugh's time at the White House demonstrating what role he may have played in developing or reviewing the Bush administration's torture, detention and surveillance policies."
Kavanaugh held several senior jobs under George W. Bush, including in the White House counsel's office and as White House staff secretary. None of those roles dealt directly with formulating national security policy, but critics note that Kavanaugh may still have been included in key meetings or exposed to the policies secondhand; for instance, by vetting a judicial nominee who had previously helped craft the detainee policy.
And the George W. Bush Presidential Library is thought to have up to millions of pages of documents relating to Kavanaugh — vastly more than the executive branch has ever produced for a previous Supreme Court nominee.
Deputy Attorney General Rod Rosenstein put out a call last week to all 93 United States Attorneys offices, asking each to provide up to three federal prosecutors to help process the mountain of documents.
Because of Kavanaugh's work for Bush and the Kenn Starr investigation, his nomination to the D.C. Circuit was controversial, with Sen. Ted Kennedy, D-Mass., calling him the "least experienced and most partisan appointee to the court in decades."
Kavanaugh's confirmation to that post was delayed three years, and when he finally went before the Senate Judiciary Committee in May of 2006, senators focused their questioning on the myriad legal controversies of the Bush era, like the treatment of terrorism detainees, the warrantless wiretapping program and the outing of CIA operative Valerie Plame.
Kavanaugh denied playing any role in those matters, saying he only learned about them from media reports like the rest of the public.
"I was not involved and am not involved in the questions about the rules governing detention of combatants," Kavanaugh told the senators.
“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 until 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," he said at another point in the hearing.
But after Kavanaugh was confirmed, The Washington Post reported that he had weighed in on at least one heated White House discussion about detainees, arguing that his former boss, Justice Anthony Kennedy, would never bless a plan to bar the detainees' access to attorneys.
The report led Durbin and Leahy, both members of the Judiciary Committee, to accuse Kavanaugh of deceiving them. Leahy asked the Department of Justice to investigate and Durbin called on Kavanaugh to recuse himself from detainee cases.
"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," Leahy wrote to then-Attorney General Alberto Gonzales in 2007. "I have no choice but to refer the matter to you for appropriate investigation and prosecutorial action."
The Department of Justice assigned career prosecutes to look into the request and declined to pursue a formal investigation. "The Public Integrity Section of the Criminal Division reviewed this matter and determined that there was not a sufficient basis to initiate a criminal investigation," Brian Benczkowski, the principal deputy assistant attorney general, wrote to Leahy in a March 2008 letter obtained by NBC News.
Kavanaugh was not prosecuted, nor did he oblige the recusal request. In 2016, for instance, Kavanaugh wrote the majority opinion in a 6-to-3 ruling of the D.C. Circuit Court upholding the conviction of a Guantánamo Bay detainee whose lawyers challenged the authority of the military tribunal system.
Durbin and Leahy declined interview requests from NBC News.
But at a Judiciary Committee meeting last week, Durbin said that in the 11 years since Kavanaugh's confirmation hearings before the Senate, he has never responded to questions about how truthful he was.
"He's going to get a chance to respond now, when he appears before this committee under oath, as to what he was trying to tell us, and what he actually did tell us when it came to this important issue," Durbin said.