by John Greenya
“But all of us lawyers have this hesitation about being considered for a judicial job. It’s very monastic—and you earn a government fixed salary for the rest of your life. If you’re going to be a federal judge, the administration wants you to do it for life. They don’t want you to do it for a year. So, if you’re a young lawyer with great earning potential and may want to have other chapters in your life, it’s kind of a difficult thing to be asked if you want this monastic existence for the rest of your life and have the same colleagues for the rest of your life. And he was 39. So, a difficult question.
“Some people think being a judge is a gold ring, but it’s actually a big commitment. Not all that glitters is gold. Now there are some lawyers who are perfectly suited for it. But Neil, he could be anything—he could be King of the universe! He had no idea he was going to end up on the Supreme Court. But he thought about it, and said, ‘Okay, I’ll do it for the rest of my life.’ ”
In 2005, the year Neil Gorsuch arrived at Justice, the aftershocks of 9/11 were still being felt. The DOJ’s inspector general had issued a report listing counterterrorism as its “top management and performance challenge”: “The highest priority of the Department of Justice continues to be its efforts to deter, prevent, and detect future terrorist acts. Given the importance of this ongoing challenge, a significant amount of the Office of the Inspector General’s (OIG) oversight efforts in the 4 years since September 11, 2001, have focused on Department programs and operations related to counter-terrorism and national security issues.”
In 2006, while Neil Gorsuch worked at Justice, President George W. Bush appointed Alberto Gonzales as the attorney general of the United States, to succeed John Ashcroft (the former governor of and senator from Missouri), who, in November, had resigned effective the day his successor was confirmed by the Senate. (Several years later he founded the Ashcroft Group, a Washington, D.C., lobbying firm, which soon became highly successful.)
At the time of Ashcroft’s leaving the cabinet, the New York Times wrote, “Mr. Ashcroft’s resignation will end one of the more controversial tenures in the attorney general’s office in recent decades. Mr. Ashcroft presided over the Justice Department in a time of crisis and bitter debate over the balance between national security and individual liberty that followed the terrorist attacks of Sept. 11, 2001. To his admirers, Mr. Ashcroft was a tireless and incorruptible law enforcer determined to protect the country and unafraid of criticism from civil libertarians. To his critics, he has been willing to skirt or trample upon the Constitution to fulfill his and President Bush’s concept of national security.”
Before becoming attorney general, Gonzales had also been in the news. In March 2004, Ashcroft’s Justice Department had ruled that the domestic intelligence program known as Stellar Wind, a warrantless surveillance program begun under George W. Bush, was illegal. The day after the ruling, Ashcroft had an attack of acute pancreatitis and was taken to the hospital. President Bush sent Alberto Gonzales, then the White House Counsel, and Andrew Card, his chief of staff, to get Ashcroft to sign a document reversing the Justice Department’s ruling, but the semiconscious Ashcroft, backed up by Acting Attorney General James Comey and Jack Goldsmith, head of the DOJ Office of Legal Counsel, refused to sign, and the ruling stood.
Both Bush and Gonzales were heavily criticized for their part in this effort, Bush for issuing the order and Gonzales for being willing to carry it out.
GONZALES’S TENURE AS ATTORNEY general, while less contentious than Ashcroft’s, was hardly trouble free. Critics faulted him for his policy of warrantless searches of American citizens and for authorizing “enhanced interrogation techniques,” which were used on prisoners held at Guantanamo Bay (nicknamed Gitmo). It was this latter area in which Neil Gorsuch spent a good deal of time and effort during his short stint at the DOJ.
In 2006, when he was nominated and confirmed (unanimously) for the federal bench, Gorsuch was not questioned about his year at the Department of Justice, but in 2017, in his Supreme Court confirmation hearings, quite a bit of time was devoted to his work at Justice, in particular his efforts in relation to the prison at Guantanamo Bay, specifically the memos he wrote relating to the legal basis of the administration’s actions regarding the prison. And many of the questions submitted for the record after the Gorsuch hearings were finished—but before the vote on his nomination—also had to do with his DOJ year, which was of particular interest to Democrats, especially Dianne Feinstein and Richard Durbin, the ranking minority member and the minority whip, respectively.
On Thursday, March 9, 2017, eleven days before the Judiciary Committee hearings were to begin, Samuel Ramer, the acting assistant attorney general, released to the committee 144,000 pages of internal DOJ documents relating to Neil Gorsuch. In a cover letter he explained that while the material normally would have been exempt from disclosure under the Freedom of Information Act rules, he was making an exemption to “accommodate” the committee. (While this was not unprecedented, the number of documents was unusually large. According to a White House spokesperson, it was “one of the most transparent processes in nomination history.”)
In a separate letter, Mr. Ramer informed Senator Feinstein that Gorsuch had been part of a Department of Justice team that handled the case of ACLU v. DOD, in which the American Civil Liberties Union had filed a Freedom of Information suit against the Department of Defense in an attempt to get the government to release photos of the prisoners at Gitmo, which they believed would show that the prisoners had been and were being mistreated.
The documents were relevant to the Judiciary Committee’s inquiry for two reasons: One, Gorsuch had drafted comments on the case; and two, he had been sent to Guantanamo by DOJ to see if the allegations were true.
Reporting for Law360 on April 7, 2017, Michael Macagnone wrote:
During his tenure at the U.S. Department of Justice, Supreme Court nominee Judge Neil Gorsuch worked on talking points and other documents in response to a high court decision on Guantanamo Bay detainees, documents released this week show. Judge Gorsuch, then a principal deputy to former Attorney General Alberto Gonzales, circulated draft interagency talking points in response to the Supreme Court’s June 2006 decision in Hamdan v. Rumsfeld and wrote part of Gonzales’ testimony submitted to the Senate Judiciary Committee on the case.
The documents [which were the common effort of several attorneys and were not signed by any one individual] amplify a Thursday letter from acting Assistant Attorney General Samuel Ramer that said Judge Gorsuch, who serves on the Tenth Circuit, had played an active role in the Hamdan case, which involved terror kingpin Osama bin Laden’s former chauffeur. The DOJ defended the Bush administration’s military commissions tasked with charging Guantanamo Bay detainees. Gorsuch discussed litigation options, reviewed pleadings and developed strategy in the case, the letter said.
At his confirmation hearings, Gorsuch was asked, by Illinois senator Dick Durbin, “Would you put in perspective any comments that you made about people representing Guantanamo detainees?” Durbin was referring to a comment Gorsuch had made about lawyers from “elite law firms” representing some Guantanamo detainees pro bono. Gorsuch replied, “I have nothing but admiration for those lawyers. The email you are referring to is not my finest moment. [I was] blowing off steam with a friend privately. The truth is, I think my career is better than that. When I have seen individuals who have needed representation, as a judge when I have gotten handwritten pro se filing, [when] I have seen something that might have merit in it, I picked up the phone and have gotten a lawyer for that person . . . . I would like to think that my career taken as a whole, Senator, represents my values appropriately.”
The email containing the draft talking points said that Al Qaeda detainees would not receive full prisoner-of-war protection from the Department of Defense and that the Supreme Court decision did not require that treatment. Other emails said that a final version of the talking points would be shared with other agencies.
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br /> According to the common draft, “[The Guantanamo prisoners] have nothing but contempt for the laws of war and the Geneva Conventions. They kidnap relief aid workers, behead contractors, journalists, and U.S. military personnel, and bomb religious shrines, wedding parties, and restaurants. They openly mock the rule of law, the Geneva Conventions, and the standards of civilized people everywhere.”
Because Gorsuch was working as part of a team, the extent of his written contributions to these letters and talking points is not clear. What is clear, however, is that the Department of Justice sent Gorsuch to Guantanamo Bay to check on the treatment of the prisoners. Upon his return, the future judge sent General Jay W. Hood, the commander, a letter thanking him for showing him around the prison: “I was extraordinarily impressed. 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 firsthand 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.”
Several months later, Gorsuch took a further step, suggesting, in an interdepartmental memo, that federal judges should visit Gitmo in order to better understand the Bush administration’s “litigating positions.” Specifically, he wrote that such a visit—“or even just the offer of a visit”—would “dispel myths and build confidence in our representations to the Court about conditions and detainee treatment . . . . If the DC judges could see what we saw, I believe they would be more sympathetic to our litigating positions.”
The Law360 article continues:
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 . . . . Peter Keisler, who worked with Judge Gorsuch on several such matters as the head of the Civil Division at the time, argued that [Gorsuch’s] 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.
IN 2001, SALIM AHMED Hamdan, a Yemeni national often described as a driver for Osama bin Laden, while attempting to return to Yemen, was arrested by the Northern Alliance in Afghanistan, who turned him over to the U.S. military (for bounty). Hamdan was charged with one count of conspiring against U.S. citizens. He said he was just a former chauffeur, but the government said he was a terrorist.
Hamdan sued on the theory that the commission set up to try Guantanamo detainees was not legal. The D.C. Court of Appeals found for the government, but the Supreme Court reversed that decision by a vote of five to three, with Chief Justice Roberts having recused himself.
The work that Neil Gorsuch did on this case supported the government’s position that the president had the necessary authority under the Use of Military Force Act, which had been passed following the attacks of September 11, 2001. The government claimed that Hamdan and the other prisoners were “unlawful combatants,” not prisoners of war, and therefore not entitled to the protection of the Geneva Conventions.
On June 30, 2017, Law360 reported, “In addition, the talking points noted that the conditions at the prison at the Naval base at Guantanamo Bay already complied with Article 3 of the Convention and that the Supreme Court case only extended to applying the Geneva Conventions as a matter of law and to the extent that they applied to the legal foundation of the military commissions. The documents, submitted to the Senate Judiciary Committee by the DOJ this week, do not include any other DOJ drafts of the talking points or the final document, so it is uncertain how much of the final product Gorsuch wrote.”
Senator Dianne Feinstein’s questions for the record during the confirmation hearings in 2017 began with Gorsuch’s work on the Hamdan case.
The California Democrat’s first question was preceded by this partial statement:
At your hearing, you acknowledged you worked on the Graham amendment to the Detainee Treatment Act, which sought to eliminate habeas corpus for Guantanamo detainees. You also acknowledged that in December 2005, after the Detainee Treatment Act was passed, there were different factions in the administration advocating different versions of the signing statement . . . . I read your email as saying if the administration issued a signing statement along these lines then the passage of the McCain amendment would not require much of a change in interrogation policy than what the Department of Justice had already decided was allowable.
She then asked, “What did your email mean?,” and Gorsuch replied, “The December 29, 2005, email chain discussed proposed versions of a signing statement to accompany the Detainee Treatment Act. As we discussed at the hearing, these events took place many years ago and my recollection is that there were individuals in maybe the Vice President’s office who wanted a more aggressive signing statement . . . and that there were others, including at the State Department, who wanted a gentler signing statement. To my recollection, as I said at the hearing, I was in the latter camp . . . . I did so in my role as a lawyer helping with civil litigation brought by individuals detained as enemy combatants and defended by the Department of Justice. The email chain indicates that the Legal Adviser for the State Department favored a gentler and more expansive statement for various reasons, including public and foreign relations. The email chain also indicates that the National Security Council expressed the view that the Detainee Treatment Act codified existing policies. In that light and as a lawyer advising a client, the email chain indicates that I suggested a signing statement could (1) speak about the Detainee Treatment Act positively to the public . . . foreign nations as the State Department suggested, (2) highlight aspects of the legislation helpful to litigators in the Civil Division of the Department of Justice, and (3) make transparent the client’s position that the Act codified existing policies.”
One of Senator Feinstein’s next questions had to do with the highly controversial topic of waterboarding. “On the first day of questioning, you told Senator Graham that the Detainee Treatment Act prohibits waterboarding. But an email you wrote when you were part of the Bush administration Justice Department seems to say the opposite—you said that the law should be read as ‘essentially codifying interrogation practices,’ which at the time included waterboarding, stress positions, sleep deprivation, and other techniques that had been approved in the Bradbury OLC memo from 2005 . . . . When did you come to the view that the Detainee Treatment Act bars waterboarding, and why in the Bush administration did you have a different view?”
The nominee answered, “I do not currently recall when precisely I came to that view. By its express terms, the Detainee Treatment Act prohibits cruel, inhuman, and degrading treatment.”
Senator Feinstein then moved to a broader type of question: “Do you understand and agree that your former role at the Justice Department—and the positions you advocated for while at the Justice Department on behalf of the government—can and should have no bearing on the way you decide cases as a judge?”
Gorsuch did agree, and said so: “I understand and agree that my former role at the Department of Justice has not had and will not have any bearing on the way I decide cases as a judge.”
The next question was “Why did you see it as a victory that those who might have been tortured or who were detained unlawfully could not exercise their rights to have their habeas claims before a federal court?” (The right of habeas corpus, Latin for “Show us the body,” is a protection afforded all American citizens under the Constitution that guards them against false imprisonment by guaranteeing that they will go before a judge or magistrate to determine if they can be released pending trial or kept in jail.
International human rights law gives this guarantee to all detainees, but the George Bush administration, in the wake of 9/11, was not honoring it, or doing so with very little speed, in the case of the Guantanamo Bay prisoners.)
Gorsuch responded:
As a lawyer in the Department of Justice, I worked with the Department of Defense and with Congress and others in a bipartisan effort to establish a system of rules to govern litigation brought by individuals detained as enemy combatants at Guantanamo Bay, bearing in mind the Youngstown formulation discussed above. Among other things, and as Senator Graham spoke about at the hearing, a process was put in place to permit detainees to challenge their status as enemy combatants in Combatant Status Review Tribunals as well as in the United States Court of Appeals for the D.C. Circuit. Some in the administration regarded these legislative provisions as intrusions on the President’s powers. In contrast, and with others, I welcomed these developments as consistent with Youngstown. That is what I recall I meant by “the administration’s upside.”
The next question from the ranking minority member of the Judiciary Committee had three parts: “a. Is that true? Yes or no. b. Is it true that you worked on the effort to use the Graham amendment to get the Supreme Court to dismiss the Hamdan v. Rumsfeld case? c. Isn’t it also true that the Supreme Court, in Hamdan v. Rumsfeld, rejected the position you advocated and held that the Graham amendment did not apply to pending cases?”
Gorsuch responded:
The Civil Division and Office of the Solicitor General of the Department of Justice advanced the position that the Detainee Treatment Act would apply to cases pending on the date of its enactment. As a lawyer for the Department, I supported that position. Ultimately, that position did not prevail in the Supreme Court, with five Justices disagreeing with the Government’s position and three Justices agreeing (Chief Justice Roberts took no part in the consideration or decision of the case).