FOIA Cases

EPIC v. NARA

US District Court for the District of Columbia

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Seeking public release White House records concerning Kavanaugh’s work on warrantless wiretapping, Patriot Act, and other surveillance programs

Background

In Freedom of Information Act lawsuit EPIC v. NARA, EPIC is seeking the public release of records concerning Brett M. Kavanaugh’s work in the White House related to the development, expansion, promotion, and defense of surveillance programs. EPIC argues that there is strong evidence that these documents exist, and that they are essential to understanding Kavanaugh’s views on privacy and how he would rule on the issue as a justice on the U.S. Supreme Court.

During Kavanaugh’s time as a top advistor in the White House-from January 2001 through May 2006-many of the post-September 11th surveillance systems, directed toward the American public, were initiated and implemented, including the warrantless wiretapping program, Total Information Awareness, airport body scanners, passenger profiling, the secret expansion of the Patriot Act and a national identification system for Americans. In his 2006 confirmation hearings for the D.C. Circuit, Kavanaugh asserted that he knew nothing of the warrantless wiretapping programs. Recently released documents, however. indicate that he drafted President Bush’s speech on the Patriot Act, communicated with John Yoo, the architect of the warrantless wiretapping program, about the legal justification for the program, and defended suspicionless wiretapping of the American public. The only way to understand the true extend of Kavanaugh’s involvement is for NARA to release the rest of his White House records related to these issues.

EPIC’s lawsuit has revealed additional emails in Kavanaugh’s conversation with John Yoo about the legal justification for surveillance. EPIC’s lawsuit also disclosed over a thousand emails related to surveillance from Kavanaugh’s time as Staff Secretary, including emails that show that Kavanaugh offered several justifications for the warrantless wiretapping program after the New York Times exposed its existence in 2005. The emails also show that Kavanaugh was extensively involved in defending the Patriot Act.

The Creation of the Warrantless Wiretapping Program

President Bush issued the first authorization for the warrantless wiretapping program on October 4, 2001. The program was grounded in legal memos written by John Yoo, a Deputy Assistant Attorney General in the DOJ’s Office of the Legal Counsel. One of these memos, titled “Constitutional Standards on Random Electronic Surveillance for Counter-Terrorism Purposes,” was dated September 17, 2001. That same day, Kavanaugh sent Yoo a message, asking: “Any results yet on the 4A implications of random/constant surveillance of phone and e-mail conversations of non-citizens who are in the United States when the purpose of the surveillance is to prevent terrorist/criminal violence?” EPIC’s lawsuit revealed that Kavanaugh and Yoo’s email conversation continued, but the contents of these emails have not been made public.

Kavanaugh was also a top advisor during the time when the DOJ began questioning the legal authority for warrantless wiretapping, including the famous clash between DOJ and White House officials at Attorney General John Ashcroft’s hospital bedside on March 10, 2004. At this time, Kavanaugh also worked directly for Alberto Gonzales, a central figure in the program. Yet no related emails have been released to the public.

The Defense of the Warrantless Wiretapping Program

The warrantless wiretapping program operated in secret until December 16, 2005, when the New York Times published an article revealing the existence of the program. The reporters had known about the program since early 2004, but White House officials convinced the paper to delay publication, keeping the American public in the dark for over a year.

When the story went public, the White House went on the defense. According to Eric Lichtblau’s Pulitzer Prize-winning book, Bush’s Law: The Remaking of American Justice, Kavanaugh was a key member of the White House team that defended the program. Lichtblau described an email Kavanaugh sent to others on the team: “‘It is not good,’ Kavanaugh wrote, ‘if Americans or Members of Congress think we did something that is a good thing but stretched the law in doing . . . we need to fight back hard on the legal part in the court of public opinion and the court of Congress.'” This email thread was heavily redacted in records released by the OLC, including this quote, making the substance of this conversation unavailable to the public. Emails released by the DOJ also show that Kavanaugh and Gorsuch were involved in placing an op-ed in USA Today defending warrantless surveillance. Emails released to EPIC show the existence of additional emails in the thread, although the contents of the emails are almost entirely redacted.

EPIC’s lawsuit also revealed new emails that show that Kavanaugh was a key defender of the warrantless wiretapping program after the program became public. The emails show that Kavanaugh offered several legal justifications for the warrantless wiretapping program after the program was revealed to the public. Kavanaugh collected analysis from Orin Kerr and Cass Sunstein and precedent from the Clinton administrations in support of the program. Kavanaugh also highlighted a portion of Justice White’s concurrence in Katz v. United States that would not require courts to scrutinize a President’s justification for warrantless surveillance if it is based on national security.

Kavanaugh downplayed his role in the defense of warrantless wiretapping in written responses to questions from Sen. Durbin after his 2006 confirmation hearings. Kavanaugh wrote that, after the New York Times story broke, “the President [spoke] publicly about the program on numerous occasions and I have performed my ordinary role as Staff Secretary with respect to staffing the President’s public speeches.” Kavanaugh’s uncritical view of warrantless surveillance has permeated into his work on the bench. While on the D.C. Circuit, Kavanaugh wrote separately in Klayman v. United States to endorse the NSA’s bulk telephone record collection program based on an unspecified “national security need.”

The Defense and Expansion of the Patriot Act

Emails contained in records released to the Senate Judiciary Committee provide a glimpse into Kavanaugh’s activities supporting the Patriot Act. Kavanaugh played a central role in the adoption and defense of the Patriot Act, which he described as a “measured, careful, responsible, and constitutional approach.” Kavanaugh drafted talking points supporting the Patriot Act that were later incorporated into President Bush’s signing statement. He wrote that “the new law will update laws authorizing government surveillance. These laws were enacted decades ago by Congress in an era of rotary telephones. These laws must be updated to account for e-mail, internet usage, cellular phones, and other forms of modern communication.” President Bush adopted the “rotary phones” characterization in his signing statement. Kavanaugh’s description of the Patriot Act revealed a deep misunderstanding of modern privacy law. In fact, the Patriot Act diminished privacy protections in the Cable Act and the Electronic Communications Privacy Act (“ECPA”), neither of which were from “the era of the rotary phone,” as they protected the privacy of interactive video records and e-mail, respectively.

Kavanaugh was still in the White House when the Patriot Act reauthorizing amendments, which further expanded surveillance authority, passed in March 2006, and when the “telephony metadata program” was transitioned to the bulk surveillance orders issued under Section 215 of the Patriot Act. These programs were harshly criticized by Members of Congress. Subsequently, the Privacy and Civil Liberties Oversight Board (“PCLOB”) reported that it had “not identified a single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counterterrorism investigation.” Sen. Leahy further emphasized that “the administration has not demonstrated that the Section 215 phone records collection program is uniquely valuable enough to justify the massive intrusion on Americans’ privacy.” Congress subsequently passed the USA FREEDOM Act in 2015, ending the bulk collection program and amending Section 215.

EPIC’s lawsuit has revealed that Kavanaugh exchanged many emails about the Patriot Act as Staff Secretary. The emails show that Kavanaugh was involved in drafting and approving fact sheets and speeches justifying the surveillance authorities. The contents of the emails, however, are largely redacted.

Opinion in Klayman v. Obama

On the D.C. Circuit, Judge Kavanaugh defended warrantless surveillance in a surprising opinion in Klayman v. Obama, where he wrote that the “bulk collection of telephony data” is not a search and is “entirely consistent with the Fourth Amendment.” He stated further that, even if it were a search, the search would be reasonable because the collection of personal data serves a “special need.” No court had ever recognized the “special needs” doctrine without a showing that the conduct in fact advances a government interet.

When Sen. Leahy asked Judge Kavanaugh about this opinion during the 2018 confirmation hearings, Judge Kavanaugh admitted that Carpenter v. United States was a “game changer” as far as whether there was a search, but he failed to justify or revise his assertion of the special needs doctrine, even faced with clear evidence that the program did not prevent any terrorist attacks.

Testimony Before the Senate Judiciary Committee in 2018

As of September 5, 2018, only 7% of the records from Kavanaugh’s time at the White House had been released to the Senate Judiciary Committee, and only 4% were available to the public.

After the September 17, 2001 email to John Yoo became public, several Senators questioned Kavanaugh about his involvement in warrantless wiretapping. Kavanaugh claimed that it was “all hands on deck” after September 11, but that he could not remember the full extent of his conversation with Yoo, or whether he had seen Yoo’s memo dated the same day. He also claimed that his 2006 testimony was truthful as to his knowledge of the Terrorist Surveillance Program, but did not further elaborate.

EPIC’s Interest

Part of EPIC’s mission is to educate the public about emerging privacy issues. It is hard to imagine a more important privacy issue than the potential confirmation of a Supreme Court justice who helped develop and defend warrantless surveillance. EPIC also provides guidance to members of the Senate Judiciary Committee on nominee’s views on privacy. Kavanaugh’s White House records relating to warrantless wiretapping and the Patriot Act are essential to understand Kavanaugh’s views on the right to privacy and how he might rule as a Supreme Court justice on the issue. EPIC submitted two urgent FOIA requests for these records. EPIC has also sent two letters to the Senate Judiciary Committee highlighting concerns about Kavanaugh’s role in the creation of the Patriot Act, his defense of warrantless wiretapping in the White House, and his troubling opinion as a judge in Klayman v. Obama, which justified the warrantless collection of phone records of all Americans.

FOIA Documents

In response to EPIC’s suit and motion for a preliminary injunction, the National Archives agreed to search and process records responsive to EPIC’s FOIA requests in three phases. The first phase involved a search of records that the Archives has already processed for release pursuant to a “special access” request by Senate Judiciary Chairman Grassley. These records include files from Judge Kavanaugh’s time in the White House Counsel’s Office. Specifically, the physical files that he maintained and the e-mails that he sent during that period. The agency conducted the following searches of Kavanaugh’s e-mails (results included below):

Phase 1 and Phase 2 Searches (E-mail records from White House Counsel’s Office period from January 2001 to July 2003)

Type of searchSearch termsNumber of results
E-mails sent from Brett M. Kavanaughto/cc/bcc John C. Yoo between September 1, 2001 and February 1, 200211
 to/cc/bcc Michael Hayden between September 1, 2001 and February 1, 20020
 that include the terms “Michael Hayden” or “National Security Agency” between September 1, 2001 and February 1, 20023
 that include the terms “Patriot Act” or “PATRIOT Act” or “surveillance”227
 that include the terms “CAPPS II” or “Privacy Act” or “Fusion Center”119
E-mails sent to/cc/bcc Brett M. Kavanaughfrom John C. Yoo between September 1, 2001 and February 1, 2002183
 from Michael Hayden between September 1, 2001 and February 1, 20020
 that include the terms “Michael Hayden” or “National Security Agency” between September 1, 2001 and February 1, 200219
 that include the terms “Patriot Act” or “PATRIOT Act” or “surveillance”1988
 that include the terms “CAPPS II” or “Privacy Act” or “Fusion Center”754
  • Phase 3 Searches (E-mail records from Staff Secretary period from July 2003 to May 2006)
Type of searchSearch termsNumber of results
E-mails sent to/from/cc/bcc Brett M. Kavanaughto/cc/bcc Patrick Philbin between May 1, 2003 and June 1, 2004258
 to/cc/bcc Jack Goldsmith between October 6, 2003 and June 1, 2004110
 to/cc/bcc Steven Bradbury between December 1, 2005 and February 1, 2006632
 that include the terms “Comey” and “Ashcroft” between March 1, 2004 and March 11, 200495
 that include the terms “Lichtblau” or “Risen” between October 1, 2004 and December 1, 2005573
 that include the terms “surveillance” or “National Security Agency”7998
 that include the terms “CAPPS II” or “Secure Flight” or “Passenger Name Record” or “Total Information Awareness”806

Legal Documents

U.S. District Court for the District of Columbia (No. 18-2150)

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