Neil Gorsuch Helped Defend Bush Torture Policies

After visiting Guantanamo, Judge Gorsuch offered the prison operation commander a glowing review. "Being able to see first hand all that you have managed to accomplish with such a difficult and sensitive mission makes my job of helping explain and defend it before the courts all the easier.”
Charlie Savage
March 15, 2017
Doug Mills / The New York Times
Judge Neil M. Gorsuch spent 14 months as a key Justice Department official during the Bush administration, and dealt with matters related to the war on terror. Credit Doug Mills/The New York Times
WASHINGTON — In December 2005, Congress handed President George W. Bush a significant defeat by tightening legal restrictions against torture in a law called the Detainee Treatment Act. Soon afterward, Neil M. Gorsuch — then a top Justice Department official — sent an email to a White House colleague in case he needed “cheering up” about the administration’s setback.
 
The email from Judge Gorsuch, nominated by President Trump to fill the vacancy on the Supreme Court caused by the death of Justice Antonin Scalia, linked to articles about a less-noticed provision in the act that undercut the rights of Guantánamo Bay detainees by barring courts from hearing their habeas corpus lawsuits.
 
“The administration’s victory is not well known but its significance shouldn’t be understated,” wrote Judge Gorsuch, who had helped coordinate the Justice Department’s work with Congress on the bill.
 
The email about the court-stripping provision — which the Supreme Court later rejected — is among more than 150,000 pages of Bush-era Justice Department and White House documents involving Judge Gorsuch disclosed by the Trump administration ahead of his Senate confirmation hearings next week.
 
Judge Gorsuch’s time in the executive branch was brief. He joined the Justice Department in June 2005 as the principal deputy associate attorney general, meaning he was the top aide to the No. 3 official in the department. He left in August 2006, when Mr. Bush appointed him as a federal appeals court judge in Denver.
 
But those 14 months were tumultuous ones for the Bush administration amid controversies over detainee abuses, military commissions, warrantless surveillance and its broad claims of executive power. Judge Gorsuch’s job put him at the center of both litigation and negotiations with Congress over legislation about such topics.
 
References to those efforts may offer clues to Judge Gorsuch’s approach to the sort of national-security and executive power issues that rarely come before his appeals court but can be crucial at the Supreme Court.
 
In November 2005, for example, Judge Gorsuch visited Guantánamo for a briefing and tour. Afterward, he wrote a note to the prison operation commander, offering a glowing review.
 
“I was extraordinarily impressed,” Judge Gorsuch wrote. “You and your colleagues have developed standards and imposed a degree of professionalism that the nation can be proud of, and being able to see first hand all that you have managed to accomplish with such a difficult and sensitive mission makes my job of helping explain and defend it before the courts all the easier.”
 
During the negotiations with Congress over the Detainee Treatment Act, Judge Gorsuch helped persuade lawmakers to weaken a provision that permitted a civilian appeals court to review decisions by military tribunals. The original draft let judges scrutinize whether a tribunal had “applied the correct standards,” but the revised one only let them look to see whether the tribunal had applied standards set by the Pentagon.
 
The change, “in response to our concerns,” Judge Gorsuch wrote, “reduces significantly the potential for judicial creativity.”
 
In June 2006, the Supreme Court issued a landmark ruling that not only struck down the administration’s military commissions system, but also implied that officials involved in abusive interrogations might be vulnerable to prosecution for war crimes. Judge Gorsuch helped draft a proposal for legislation that would address both matters, the files show, although he left before the eventual bill, the Military Commissions Act, was enacted.
 
He was also part of teams that helped draft speeches on national security for Attorney General Alberto R. Gonzales and an op-ed published by USA Today, under his supervisor’s byline, defending President Bush’s warrantless surveillance program and his use of a signing statement to claim a right to bypass the Detainee Treatment Act’s provision banning torture.
 
And, in his role overseeing the department’s Civil Division, Judge Gorsuch handled all “terror litigation” for his office, an email from a colleague said. Such national security cases included the government’s defense against a lawsuit seeking disclosure of photographs of detainee abuses after the Abu Ghraib scandal, he wrote in a description of his work for a performance review.
 
They also included a lawsuit by a German man, Khaled el-Masri, against the former C.I.A. director and companies suspected of being involved in the agency’s so-called extraordinary rendition flights. The plaintiff said the agency had abducted him, beaten him and taken him to a “black site” prison in Afghanistan, and then let him go after realizing it was a case of mistaken identity. But the Bush administration argued that the case must be dismissed lest it endanger “state secrets.”
 
When the district court judge overseeing the rendition lawsuit agreed to dismiss it, David Addington, the counsel to Vice President Dick Cheney, sent a congratulatory email to his former deputy, Courtney Simmons Elwood, who had since become a counselor to Mr. Gonzales.
 
Ms. Elwood — who is now President Trump’s nominee to be C.I.A. general counsel — forwarded it to Judge Gorsuch and a few other top officials on the team handling the case.
 
“Your department did a great job with” the C.I.A. case “in protecting the ability of the institution of the presidency to protect the American people under the Constitution in the war on terror,” Mr. Addington wrote. “Well done.”
 
But while Judge Gorsuch spent those 14 months immersed in executive power and national security disputes from the Bush administration’s perspective, his own comments in the documents rarely sounded overtly ideological notes like Mr. Addington’s.
 
Peter Keisler, who worked with Judge Gorsuch on several such matters as the head of the Civil Division at the time, argued that his role during that period should be understood as representing a client: He helped shape arguments and litigation strategy, but not the underlying national security policy decisions which “had already been made.”
 
“The emails just reflect the fact that he was gratified when the department would win and disappointed when it would lose, which is not surprising because these were cases he was working on as an attorney for the government and advancing its positions,” Mr. Keisler said.
 
The files have not yet been systematically examined, and Democrats on the Senate Judiciary Committee have complained that they appear to be incomplete. Senator Dianne Feinstein of California, the panel’s ranking Democrat, sent a letter to Judge Gorsuch this week saying that the committee needs additional documents by 5 p.m. on Thursday.
 
For example, her letter noted, one document in the tranche indicated that Judge Gorsuch made a “proposal for a seminar on torture policy” to the Council on Foreign Relations, but the proposal itself was not included in the documents given to the committee.
 
“Please provide to the committee any materials related to any involvement you had in the issue of torture (including so-called ‘enhanced interrogation techniques’), including this proposal,” she wrote.
 
March 17, 2017