EPIC v. NARA

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

Top News

  • EPIC FOIA: National Archives Finds More Kavanaugh E-mails on Surveillance Programs: The National Archives has found hundreds of e-mails about Justice Kavanaugh's role in controversial White House surveillance programs, including warrantless wiretapping and passenger profiling. Following EPIC's Freedom of Information Act lawsuit, the agency found hundreds of Kavanaugh email messages about the wiretapping program from 2003. Kavanaugh also exchanged 95 e-mail messages about the controversial renewal in 2004, which the Attorney General and FBI Director opposed. There are also 573 Kavanaugh email messages about "Lichtblau" and "Risen" prior to the New York Times expose on the warrantless wiretapping program. The National Archives also found more than 8,000 e-mails that Kavanaugh sent or received about passenger profiling programs. Prior to the nomination hearing, EPIC warned that Kavanaugh, both as a White House legal advisor and then as a federal appellate judge, showed little regard for the constitutional privacy rights of Americans. (Oct. 24, 2018)
  • In EPIC Suit, National Archives Identifies Thousands of Kavanaugh E-mails on Surveillance Programs: In EPIC's Freedom of Information Act suit, the National Archives has now identified thousands of additional records concerning Justice Kavanaugh's role in controversial White House surveillance programs, including warrantless wiretapping and the Patriot Act. These programs were later suspended, curtailed, or modified by Congress. The agency completed its second search of e-mails on Wednesday, in response to EPIC's case, and found that Kavanaugh received 183 messages from John Yoo, the architect of the warrantless wiretapping program. The Archives also found 1,988 e-mails concerning Kavanaugh and "surveillance" programs and the "Patriot Act" and 754 e-mails concerning Kavanaugh "CAPPS II" (passenger profiling), "Fusion Centers" (government surveillance centers), and the Privacy Act. The National Archives will eventually release these records to the public as a result of EPIC's lawsuit. Prior to nomination hearing, EPIC had warned that Kavanaugh, both as a White House legal advisor and then as a federal appellate judge, showed little regard for the constitutional privacy rights of Americans. (Oct. 11, 2018)
  • More top news

  • EPIC Calls on Senate Leaders to Postpone Vote on Kavanaugh Pending Release of White House Emails on Surveillance Programs + (Oct. 3, 2018)
    Following the release of new information to EPIC in a FOIA lawsuit against the National Archives, EPIC has asked Senator McConnell and Senator Schumer to postpone a vote on the nomination of Judge Brett Kavanaugh. The documents obtained in EPIC v. NARA reveal that Judge Kavanaugh played a significant role in controversial White House surveillance programs that implicate the constitutional privacy rights of Americans. The Archives has now confirmed that there are hundreds of emails concerning Kavanaugh's role in such programs as warrantless wiretapping, the Patriot Act, "CAPPS II" (passenger profiling), and "Fusion centers" (government surveillance centers). Kavanaugh exchanged almost a dozen emails to John Yoo, whose legal memos on surveillance were later rescinded by the Office of Legal Counsel. EPIC wrote, "the Senate curtailed several of these programs that Brett Kavanaugh helped develop."
  • National Archives Confirms Existence of Numerous Kavanaugh Records on Surveillance Programs + (Oct. 3, 2018)
    In response to EPIC's Freedom of Information Act suit, the National Archives has now confirmed that there are hundreds of records concerning Brett Kavanaugh's role in controversial White House surveillance programs, including warrantless wiretapping and the Patriot Act. The programs were later suspended, curtailed, or modified by Congress. The communication to EPIC revealed that Kavanaugh sent 11 e-mails to John Yoo, the architect of warrantless wiretapping; 227 e-mails about "surveillance" programs and the "Patriot Act;" and 119 e-mails concerning "CAPPS II" (passenger profiling), "Fusion Centers" (government surveillance centers), and the Privacy Act. The National Archives has processed roughly 300,000 pages of Judge Kavanaugh's records between 2001 and 2003. These records will be released this month pending White House approval. EPIC has warned that Kavanaugh, both as a top-level White House aide and then as a federal appellate judge, has shown little regard for the Constitutional privacy rights of Americans.
  • Senate Committee Moves to Vote on Kavanaugh with White House Records on Mass Surveillance Still Secret + (Sep. 28, 2018)
    Chairman Charles Grassley (R-IA) has scheduled a vote today on the nomination of Judge Brett Kavanaugh to the Supreme Court, though records of Kavanaugh's White House role in the Patriot Act, warrantless wiretapping, and other programs of mass surveillance remain secret. EPIC filed a Freedom of Information Act lawsuit against the National Archive for release of these records and then moved for a preliminary injunction so that the records could be made available prior to Senate consideration of the nominee. In an earlier statement to the Senate Judiciary Committee, EPIC warned that Kavanaugh, both as a top-level White House aide and then as a federal appellate judge, has shown little regard for the Constitutional privacy rights of Americans. In Klayman v. Obama, he backed the warrantless collection of the telephone records of all Americans under the "special needs" doctrine, a view endorsed by no other judge in the federal judiciary. In a second letter, EPIC urged postponement of the Senate vote, pending release of these documents. Yesterday, the American Bar Association called for postponement of the vote, pending an investigation of charges concerning sexual assault.
  • EPIC Seeks Injunction to Compel Release of Kavanaugh Records + (Sep. 21, 2018)
    EPIC has filed a motion seeking a preliminary injunction against the National Archives to compel the release of Brett Kavanaugh’s White House records about warrantless surveillance and the Patriot Act. EPIC argues that these records are essential to understand Kavanaugh’s views on privacy, and must be released prior to the Senate votes on the Supreme Court nominee. EPIC explained that the agency has already missed deadlines established by the Freedom of Information Act. EPIC filed suit against NARA on September 17 after NARA failed to process EPIC’s two urgent Freedom of Information Act requests. EPIC earlier 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.
  • EPIC Sues for Release of Kavanaugh White House Records on Warrantless Surveillance, Patriot Act + (Sep. 18, 2018)
    EPIC has filed a lawsuit to compel the National Archives and Records Administration to release Brett Kavanaugh's White House records about warrantless surveillance and the Patriot Act. EPIC's lawsuit follows the agency's failure to respond to EPIC's two urgent Freedom of Information Act requests. In the complaint, EPIC explains that timely release of these records is now essential to assess Kavanaugh's role in the White House surveillance programs. In Senate testimony, Kavanaugh claimed that he knew nothing about these programs, but documents indicate that he drafted President Bush's speech on the Patriot Act, communicated with John Yoo, the architect of the warrantless surveillance program, and defended suspicionless surveillance of the American public. Last week, EPIC sent a letter to the Senate Judiciary Committee urging postponement of the the committee vote on Kavanaugh until the documents EPIC requested are released. EPIC highlighted concerns about Kavanaugh’s White House years in an earlier letter to the Committee.
  • EPIC Asks Senate Committee for Delay on Kavanaugh Vote, Seeks Records Release + (Sep. 12, 2018)
    In a letter to the Senate Judiciary Committee, EPIC has urged the Senate Judiciary Committee to postpone the vote in the Executive Business Meeting on the nomination of Judge Brett Kavanaugh, pending the release of documents concerning the development, defense, and promotion of surveillance programs during the period 2001-2006. EPIC said “[t[he documents are necessary for a full consideration of the qualifications of the nominee to serve on the United States Supreme Court.” In an earlier letter to the Committee, EPIC asked the Senate to determine Judge Kavanuagh's role, while in the Bush White House, in the unlawful warrantless wiretapping program and the secret expansion of the Patriot Act. Traditionally, the records of Supreme Court nominees who served in the White House are routinely made available prior to committee hearings. Last month, EPIC submitted two urgent Freedom of Information Act requests for the records. EPIC regularly shares its views with the Senate concerning nominees to the Supreme Court, including Justice Gorsuch, Justice Kagan, Justice Sotomayor, Justice Alito, and Chief Justice Roberts.
  • Senator Leahy Pursues Questions about Privacy with Judge Kavanaugh + (Sep. 6, 2018)
    During day three of the Senate Judiciary Committee’s nominations hearings, Senator Patrick Leahy asked Judge Kavanaugh about privacy and government surveillance. (6:20) Senator Leahy stated “In your concurrence in Klayman v. Obama you went out of your way to say that not only is the dragnet collection of American’s telephone records by the NSA okay because it’s 'not a search,’ you also said that 'even if it is a search, it is justified in order to prevent terrorism.’” Senator Leahy pointed out that the Privacy and Civil Liberties Oversight Board found that the legal authorities in the Klayman case had not prevented a single terrorist act. Leahy asked, "Why did you go out of your way to write an opinion stating that the program met a critical national security need when it had already been found by our national security people it made no concrete difference in fighting terrorism?” Judge Kavanaugh said that the recent Supreme Court decision in Carpenter was a “game-changer” and that had it been law at the time, he could not have written the concurrence in Klayman. Senator Leahy also questioned Judge Kavanaugh on U.S. v. Jones, asking “do you believe that there becomes a point where the collection of data about a person becomes so pervasive that a warrant would be required even if the collection of one bit of the same data would not?” Judge Kavanaugh did not answer this question directly. Senator Flake commended Senator Leahy’s questions, noting that future of privacy was a critical issue for the Committee to consider.
  • EPIC Urges Senate Committee to Explore Kavanaugh's Views on Privacy, Klayman Opinion + (Sep. 3, 2018)
    In a letter and memo to the Senate Judiciary Committee, EPIC has urged Senators to question Supreme Court nominee Brett Kavanaugh on critical privacy, open government, and government surveillance issues. EPIC expressed concerns about the Kavanaugh’s views on privacy and Constitutional rights, stating “In Klayman v. Obama, Judge Kavanaugh went out of his way to set out theories to defend the suspicionless surveillance of the American public that surprised even conservative legal scholars.” EPIC said that Kavanaugh's views are out of step with recent Supreme Court opinions that carry forward Fourth Amendment protections to the digital age for GPS tracking, cell phone searches, and cell site location data. EPIC also asked the Senate to determine Judge Kavanuagh’s role, while in the Bush White House, in the unlawful warrantless wiretapping program and the secret expansion of the Patriot Act. EPIC regularly shares its views with the Senate concerning nominees to the Supreme Court, including Justice Gorsuch, Justice Kagan, Justice Sotomayor, Justice Alito, and Chief Justice Roberts. The Senate hearings begin on Tuesday, September 4.
  • EPIC and Open Government Groups Urge Senate to Delay Hearing on Kavanaugh + (Aug. 27, 2018)
    EPIC along with a nonpartisan coalition of open government groups sent a letter to the Chair and Ranking Member of the Senate Judiciary Committee urging the Senate to delay hearings on Supreme Court nominee Brett M. Kavanaugh until all relevant records are released. In the letter, the groups stated, "Secrecy and selective availability of information continue to plague public confidence in the Senate's ability to conduct a fair and impartial review of Judge Kavanaugh's background and qualification." The groups urged the senators to work across party lines to ensure maximum transparency and protect the public's right to know. Judge Kavanaugh's confirmation hearing is currently scheduled for September 4, yet most of the records from his White House years have been withheld. Traditionally, the records of Supreme Court nominees who served in the White House are routinely made available prior to committee hearings. Earlier this month, EPIC submitted two urgent Freedom of Information Act requests for the records. At issue are concerns about Judge Kavanaugh's role in the warrantless wiretapping program and the secret expansion of the Patriot Act.
  • EPIC and Open Government Groups Urge Senate to Delay Hearing on Kavanaugh + (Aug. 27, 2018)
    EPIC along with a nonpartisan coalition of open government groups sent a letter to the Chair and Ranking Member of the Senate Judiciary Committee urging the Senate to delay hearings on Supreme Court nominee Brett M. Kavanaugh until all relevant records are released. In the letter, the groups stated, "Secrecy and selective availability of information continue to plague public confidence in the Senate's ability to conduct a fair and impartial review of Judge Kavanaugh's background and qualification." The groups urged the senators to work across party lines to ensure maximum transparency and protect the public's right to know. Judge Kavanaugh's confirmation hearing is currently scheduled for September 4, yet most of the records from his White House years have been withheld. Traditionally, the records of Supreme Court nominees who served in the White House are routinely made available prior to committee hearings. Earlier this month, EPIC submitted two urgent Freedom of Information Act requests for the records. At issue are concerns about Judge Kavanaugh's role in the warrantless wiretapping program and the secret expansion of the Patriot Act.
  • Congressional Research Service: Kavanaugh has a "more restrictive view" of the Fourth Amendment + (Aug. 27, 2018)
    The Congressional Research Service, has published a report regarding Supreme Court nominee Judge Kavanaugh's jurisprudence. The nonpartisan CRS provides policy and legal analysis to committees and Members of both the House and Senate, regardless of party affiliation. The CRS report discusses Judge Kavanaugh's potential impact on the Supreme Court if confirmed. According to the report, Judge Kavanaugh has a "more restrictive view" on the constitutional right to be free of unreasonable searches and seizures than other judges on the D.C. Circuit Court of Appeals. Notably in Klayman v. Obama, Judge Kavanaugh stated that the National Security Agency's suspicionless surveillance of the American public was "entirely consistent with the Fourth Amendment." The report also includes an Appendix with tables that summarizes his rate of concurring and dissenting opinions relative to other judges on the D.C. Circuit and how his opinions have fared when reviewed by the Supreme Court.
  • Kavanaugh White House Counsel: PATRIOT Act, "measured, careful, responsible, and constitutional approach" + (Aug. 11, 2018)
    On Thursday, the Senate Judiciary Committee released the first production of records for Supreme Court nominee Brett M. Kavanaugh from his time as associate counsel for George W. Bush. Roughly 5,700 pages of documents were made available to the public. The documents show that Kavanaugh assisted in the effort to pass the Patriot Act and drafted a statement that President Bush incorporated in the bill signing. Kavanaugh wrote that the PATRIOT Act will “update laws authorizing government surveillance,” which he claimed, and President Bush then restated, were from an era of “rotary phones.” In fact, the PATRIOT Act weakened numerous U.S. privacy laws, including the subscriber privacy provisions in the Cable Act and the email safeguards in the Electronic Communications Privacy Act. Both laws were enacted after the era of rotary phones. Congress amended the Foreign Intelligence Surveillance Act after it was revealed that the White House had authorized warrantless wiretapping of Americans beginning in 2002. In an email exchange, Kavanaugh wrote that the PATRIOT Act was a "measured, careful, responsible, and constitutional approach . . . .” EPIC recently submitted two urgent Freedom of Information Act requests for Judge Kavanaugh’s records during his time serving as Staff Secretary for President Bush.

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.

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?" No subsequent e-mails between Kavanaugh and Yoo regarding this program have 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.

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." Other records about Kavanaugh's role in defending the warrantless wiretapping program haev been released to the public.

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.

No emails about Kavanaugh's role in the secret expansion of the Patriot Act and expansion of the Section 215 program have been made public.

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

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