Kavanaugh Is Pressed on Knowledge of Bush-Era Disputes

Still, Mr. Leahy also said there were other documents the committee had received that shed additional light on Judge Kavanaugh’s interactions with Mr. Miranda, hinting that one may contain a Democratic file marked “confidential.”

Mr. Leahy also brought up Judge Kavanaugh’s testimony distancing himself from knowledge of a National Security Agency warrantless surveillance program, code-named Stellarwind. In May 2006, after asking about what Judge Kavanaugh had seen in his role as staff secretary from 2003 to 2006, Mr. Leahy had asked whether he saw or heard anything related to “the president’s N.S.A. warrantless wiretapping program.”

Judge Kavanaugh had said he learned about it from a December 2005 article in The Times.

But on Wednesday, Mr. Leahy suggested that a “committee confidential” email may show that in 2001 Judge Kavanaugh had asked John Yoo, a Justice Department lawyer who wrote secret memos blessing the program as legal based on a sweeping and disputed theory of executive power, to answer questions about the constitutionality of warrantless surveillance.

In an email, Mr. Yoo — now a professor at the University of California, Berkeley, law school — denied that, writing: “Kavanaugh was not cleared to know about Stellarwind or any other counterterrorism surveillance program that I worked on while at the Justice Department. I have never had any conversation with Kavanaugh about those programs, or even the general subject of presidential power and electronic surveillance. Ever.”

Still, Mr. Leahy referenced a Sept. 17, 2001, memo by Mr. Yoo to Timothy Flanagan, then the deputy White House counsel, entitled “Constitutional Standards on Random Electronic Surveillance for Counter-Terrorism Purposes.” It explored a “hypothetical” warrantless surveillance program, according to a declassified Justice Department inspector general report that portrayed that memo as a preliminary version of an Oct. 4, 2001, memo in which Mr. Yoo blessed Mr. Bush’s authorization that day of the Stellarwind program.

Later on Wednesday, an unknown person provided The Times with what appeared to be the email Mr. Leahy had been obliquely referring to. Marked “committee confidential,” the message appeared to have been sent by Judge Kavanaugh to Mr. Yoo at 3:28 a.m. on Sept. 17, 2001, blind-copying Mr. Flanagan, asking whether there were “any results yet” on the Fourth Amendment implications of “random/constant surveillance of phone and email conversations of noncitizens who are in the United States” to prevent terrorist or criminal violence.

At the hearing, Mr. Leahy had pressed Judge Kavanaugh to say whether he had ever raised questions “about the constitutional implications of a warrantless surveillance program” with Mr. Yoo in 2001.