24 Difficult Questions to Ask Trump Supreme Court Pick Judge Gorsuch

Jennifer Daskal

This article first appeared on the Just Security site.

Today, March 20, the Senate hearing on Judge Neil Gorsuch’s nomination to the Supreme Court will begin.

As senators prepare for the hearing, it is important they pay careful attention to a period in Gorsuch’s career, between 2005 and 2006, when he served as the principal deputy to the associate attorney general at the Justice Department.

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In this position, he was involved in some of the highest priority national security–related policy and litigation handled by the Bush administration (as Charlie Savage points out here). It was a time in which the executive branch repeatedly sought to shield its national security–related practices from judicial review, and in doing so, advanced extremely broad claims of unreviewable assertions of executive authority in the context of national security.

These claims are of particular relevance today given that in less than two months of his presidency, Trump has already claimed unreviewable authority in the context of his immigration policy and relied on totally unsupported claims of national security in doing so.

He has also demonstrated a willingness to attack just about any institution—including his own intelligence community and the courts—that disagrees with him.

Judge Gorsuch has acknowledged playing a significant role in at least five key cases during his two years at the Justice Department that involved efforts to defend and shield from review detainee abuse, warrantless wiretapping and the expansive use of the FBI’s national security authorities.

GettyImages-92477278

Guantánamo Military Prison detainees at early morning prayer at the U.S. military prison for "enemy combatants," on October 28, 2009, in Guantánamo Bay, Cuba. Jennifer Daskal writes that Trump Supreme Court nominee Neil Gorsuch was involved in some of the highest priority national security–related policy and litigation handled by the Bush administration, including discussions regarding the contours of the Detainee Treatment Act of 2005, which among other things stripped Guantánamo detainees of the ability to bring habeas challenges their detentions. (These habeas-stripping provisions were eventually declared unconstitutional by the Supreme Court.) John Moore/getty

In addition, Judge Gorsuch was actively involved in policy discussions regarding the contours of the Detainee Treatment Act of 2005, which among other things stripped Guantánamo detainees of the ability to bring habeas challenges their detentions. (These habeas-stripping provisions were eventually declared unconstitutional by the Supreme Court.)

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The specifics of Judge Gorsuch’s advice and role in these matters, as well as his views now, should be probed further.   

At age 49, Gorsuch would, if confirmed, be the youngest member of the Supreme Court, and thus likely to be there for a long time. He could end up being the decisive vote in a range of future cases that involve executive branch policies that push at, or cross, the line of legality—defended based on expansive claims of unreviewable executive authority in the arena of national security.

Six Key Areas for Investigation

The following provides additional background on the key cases and policy measures in which we know Judge Gorsuch played a significant role while at Justice. They elaborate on an earlier post on these issues.

1. Hamdan v. Rumsfeld

In this case, the U.S. government sought to defend the then-existing military commissions, which were authorized by an executive branch-issued military order in the wake of the 9/11 attacks. Among other deviations from other court proceedings, the commissions allowed the defendant and his civilian counsel to be excluded from the trial based on “national security interests” and incorporated lax evidentiary rules that would have permitted the use of evidence obtained through torture.

In a brief to the Supreme Court, the Justice Department sought to short circuit the court’s inquiry, asserting that “courts are not competent to second-guess judgments of the political branches regarding the extent of force necessary to prosecute a war.”   

And while claiming that the alleged congressional authorization “obviate[d]” the need to consider the president’s independent authority to establish such commissions, the Justice Department’s brief provided a full-throated defense of the president’s “inherent,” and presumably unfettered, “commander-in-chief authority to establish military commissions without explicit authorization from Congress.”

The briefing also describes President George W. Bush’s decision that the Geneva Conventions did not apply to the conflict with Al-Qaeda as “binding on the courts.” Judge Gorsuch acknowledges significant involvement in reviewing the briefs and developing litigation strategy in this case.

2. Doe v. Gonzalez

In this case, the government defended the rule that recipients of national security letters (NSLs) are forever barred from disclosing that they had been the recipients of such a request. NSLs are issued by the executive branch and require production of certain types of information deemed “relevant” to specified national security investigations. (The NSL statute was ultimately amended to permit limited disclosures in order to obtain legal advice.)

The Justice Department brief, filed with Judge Gorsuch’s input, emphasized the importance of secrecy to the effective conduct of counterterrorism and counterintelligence investigations. The brief casually dismisses as insignificant the key distinction between the NSL statute, pursuant to which the bar on disclosure lasts into perpetuity, and other secrecy orders, which are time-limited.

According to the Justice Department brief, “even if the investigation were complete, the permanent character of the non-disclosure obligation is justified by the unique characteristics of counter-terrorism and counterintelligence investigations.” Taken to its logical conclusion, this reasoning would justify permanent secrecy about a wide array of executive-based activity in the name of counterterrorism and counterintelligence information gathering.

The briefing further highlights the deference that should be given to the executive in these matters, excoriating the lower court for failing to adopt the government’s view of the matter.

At a fundamental level, the district court’s opinion reflects an unwarranted reluctance to give weight to reasoned judgments of the Executive Branch regarding the risks associated with the disclosures about secret intelligence gathering activities....

To dismiss the carefully considered judgments presented by the government in this case as mere ‘speculation,’ and to replace those judgments with the court’s own conclusion that disclosure would not be harmful, is to make the judiciary rather than the Executive Branch the arbiter of this country’s intelligence gathering needs. That is a role the judiciary is institutionally unsuited to play.

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3. ACLU v. Department of Defense

In this case, the Department of Justice fought against the disclosure of a number of documents sought in FOIA litigation. Of particular import, Judge Gorsuch self identifies as playing a significant role in fighting against the disclosure of photographs depicting detainee abuse at Iraq’s Abu Ghraib prison.

Somewhat ironically, the briefing couched the opposition under the guise of protecting against the disclosure of detainees’ identity in contravention of the very Geneva Conventions that the administration had previously contended didn’t apply to the detainees (thus clearing the way for the use of torture and other abuse).

Notably, both the district and circuit court rejected the administration’s position, concluding that the photographs could be and were redacted to protect against disclosure of specific detainees’ identities. Ultimately, however, the photos were protected from disclosure pursuant to legislation passed by Congress.

The Department of Justice also adopted the position that it could not even confirm or deny the existence of legal memoranda—in this case the Yoo torture memo regarding the application of the Convention Against Torture—that were issued by the Justice Department to the CIA.

There are of course strong reasons to protect intelligence sources and methods from disclosure, but the idea that the government can protect from disclosure even the existence of legal advice about the application (or in this case the inapplicability) of international law represents a dangerous tendency toward excessive secrecy that is both damaging to the principles of democracy and facilitates abuse.

4. El-Masri v. Tenet

This case involved a successful invocation of state secrets to prevent Khalid el-Masri—a German citizen who was abducted while traveling in Macedonia, held incommunicado, and reportedly tortured and abused in CIA custody for four months before being released—from bringing suit against the government officials and private contractors involved in his treatment.

By invoking the state secret doctrine, the government was able to prevent the suit from going forward and anyone involved from being held liable for their actions based on a concern that the litigation would require disclosure of sensitive military intelligence information.

Khalid el-Masri’s detention was determined “unjustified” by the CIA inspector general; is discussed in the publicly released version of the Executive Summary of Senate Intelligence Committee Study of the CIA’s Detention and Interrogation Program, and has been detailed and condemned by the European Court for Human Rights.

5. In re Iraq and Afghans Detainee Litigation

In this case, Judge Gorsuch did not just advise, but was actually a named author on one of the key briefs that argued that the claims of several detainees that alleged to have been tortured and abused in U.S. custody overseas should be dismissed.

The brief stated that courts should not undertake “the task of balancing individual rights against national-security concerns” unless the political branches, “in whom the Constitution imposes responsibility for our foreign affairs and national security,” have determined that “judicial oversight is appropriate.”

The brief further emphasizes that the military system is the appropriate venue for any relief. It is, however, now well known (and was presumably known then) that the military system provides no mechanism for torture victims to seek redress or any kind of compensation for abuse.

6. The Detainee Treatment Act of 2005 and the Military Commissions Act of 2006

Judge Gorsuch also appears to have played an active role in advising the senators that authored the Detainee Treatment Act of 2005, which stripped Guantánamo detainees of their ability to bring habeas challenge their detentions.

After the Supreme Court concluded that these provisions did not have retroactive effect, Congress amended the law in 2006 (as part of the Military Commissions Act of 2006 ) to make clear that it was meant to apply retroactively—presumably with Judge Gorsuch’s input.

The Guantánamo-based habeas-stripping provisions were ultimately declared unconstitutional by the Supreme Court. The legislation was part of a broader effort to shield executive action in the context of national security from any kind of meaningful judicial oversight.

Significantly, the Detainee Treatment Act of 2005 also prohibited the use of cruel, inhumane, and degrading treatment by all U.S. officials. But in at least one document that sought to anticipate challenges to this legislation—and was released to the Judiciary Committee—what appear to be Judge Gorsuch’s handwritten notes indicate the view that torture works. In fact, Gorsuch worked closely with several members of the Bush administration who actively and vociferously opposed the humane treatment requirements of the legislation at the time.

Judge Gorsuch also appears to have been actively advising on the 2006 Military Commissions Act, which, consistent with the Justice Department’s position in the Hamdan case, specified that any presidentially issued interpretation of the meaning and application of the Geneva Conventions shall be “authoritative”—a provision that was designed to shield executive branch-issued interpretations from judicial review.

This legislation also prohibited any person from invoking the Geneva Conventions as a source of rights in any litigation against the United States or against a U. government employee.

The Act also permitted the use of evidence obtained via cruel, inhuman, or degrading treatment prior to the passage of the Detainee Treatment Act in December 2005. (This was changed in the Military Commissions Act of 2009; statements obtained through cruel, inhuman, or degrading treatment are now inadmissible in military commissions.)

Questions for Judge Gorsuch

With these issues in mind, here are a series of questions that the Senate should consider as they weigh Judge Gorsuch’s nomination:

The department emphasized the “inherent” commander-in-chief powers. And it describes President George W. Bush’s decision that the Geneva Conventions did not apply to the conflict with Al-Qaeda as “binding on the courts.” In other cases you have worked on (including both Doe v. Gonzalez and In re Iraq and Afghanistan Detainee Litigation), the Department argued that courts should not second-guess the decisions of the executive branch and Congress in national security-related matters.

  • What if any limits apply to what the political branches can do to prosecute a war?

  • What if the political branches authorize the summary execution of captured detainees?

  • What if the political branches authorize the internment of all Muslims? Is Korematsu (in which the Supreme Court upheld the legality of the internments of the Japanese in WWII) still good law? Is it precedent that you would rely on?

  • What about the registration of all Muslims in the United States?

  • To the extent any limits apply, what are they? What is the source of such limits?

  • In litigation over the now-revised executive order banning nationals from seven predominantly Muslim countries, the Department of Justice argued that for national security reasons, there is unreviewable executive authority to make decisions about who can comes into this country.

    • Do you agree?

    • Should the executive’s claims of national security ever be subject to court review? In what circumstances? What are the sources of those limits?

  • Under what circumstances if ever, does international law, including the laws of war, limit the president’s actions?

    • Is the president’s interpretation, with respect to the executive’s international law obligations, binding on the court, as the Department of Justice’s briefing in Hamdan, in which you played, argued?

    • If not, how much deference should be given to the executive’s interpretation of its international law obligations? In what situations, if ever, would it be appropriate for a court to disagree?

  • In Doe v. Gonzalez, a case in which you played a significant role, the Department of Justice defended a perpetual prohibition on disclosure of NSLs, even after an investigation comes to a close. This was based on a claim about the “unique” characteristics of terrorism and intelligence investigations.

Briefing in the case also warned that judges should not replace executive branch determinations about the need for secrecy with their own conclusions; that this would “make the judiciary rather than the executive branch the arbiter of this country’s intelligence gathering needs” and that this “is a role the judiciary is institutionally unsuited to play.”

  • In what circumstances, if any, should a court review an asserted executive branch claim about the need for secrecy?

  • What if there is no one that is in the position to challenge the information gathering—as happens in situations in which the service provider lacks standing to challenge the surveillance and is prohibited from informing the target? Is that permissible? Can Congress and the executive create a surveillance scheme in which there is no possibility for court review

  • The Doe v. Gonzalez case involved government efforts to access account information, as opposed to the content of communications. Would a permanent bar on disclosing requests for communications content also be permissible in terrorism-related cases?

  • You have been involved in a number of cases that sought to shield both executive branch officials and private contractors from accountability for torture and other abuses. In at least one case (In re Iraq and Afghanistan Detainees), you co-authored a brief that stated that the victims should instead seek redress in the military system, rather than the courts.

More than 10 years later, it is now clear that the military is not prepared to offer compensation or redress to even to those victims of torture and abuse who were determined to have been wrongly or erroneously detained.

  • Do you maintain the view that victims of torture and abuse are not permitted to seek redress for violations of both constitutional and international law in U.S. courts?

  • Is this true for U.S. citizen victims as well?

  • When, and in what circumstances, can victims of abuse in alleged national security investigations or operations seek judicial redress?

  • In at least one document released to the Senate Judiciary Committee, you have indicated in handwritten notes the view that torture works.

    • Do you believe that torture works?

    • Is the use of torture lawful?

    • Do you think it is permissible for the president to authorize the use of torture based on a claim of national security, despite clear international and statutory law that prohibits him from doing so?

    • Would the president’s authorization of the use of torture be an appropriate matter for judicial review? Would those who engaged in such torture be protected from liability based on a presidential authorization?

  • The 2001 Authorization for the Use of Military Force permits military action “against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” It has provided the domestic law justification for the ongoing law of war detentions in Guantánamo.

The Obama administration subsequently claimed that it also provided the domestic law justification for the use of force against ISIS, even though ISIS did not form until years later and formally broke off from Al-Qaeda. Presumably the current administration is relying on the same legal justification for the continued (and expanded) U.S. military operations against ISIS in Iraq and Syria.

  • Is the executive’s view of who is covered by a force authorization binding on the courts? If not, how much deference should be given? What would you look to in making the determination as to what entities are covered?

  • How can a statute directed at the participants in the 9/11 attacks and its supporters authorize use of force against a terrorist group that did not exist until after the attacks?

  • How would you go about assessing whether the 2001 AUMF supports the detention of individuals captured in connection with the conflict against ISIL?

  • It is generally accepted that Article II of the Constitution provides the president with the authority to use force without congressional authorization so long as the use of force is limited and the president complies with the requirements of the War Powers Act.

    • Is the president’s determination that such force is needed ever an appropriate subject for judicial review?

    • If so, on what grounds? What factors should a court look at in determining whether the use of force fell within the president’s Article II authority?

Jennifer Daskal is an associate professor at American University Washington College of Law.

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