When Judge Neil Gorsuch was a top official in President George W. Bush’s Justice Department, he was a key defender of some of the administration’s most controversial tactics in the “War on Terror.”
Gorsuch’s role in the Bush Administration has garnered renewed interest after the Senate Judiciary Committee requested the release of emails and documents from his time in the executive branch.
Gorsuch was selected by President Donald Trump to fill the Supreme Court seat vacated by the late Antonin Scalia. His Senate confirmation hearing began Monday.
During Gorsuch’s 14 months as principal deputy associate attorney general from 2005 to 2006, he was a crucial architect of the legal defenses for Bush’s “War on Terror” policies following 9/11.
Gorsuch articulated legal justifications of Bush’s order to wiretap of Americans’ international phone calls and emails without warrants, and of the administration’s practice of suspending habeas corpus for some detainees, The New York Times reported last week.
He also visited Guantanamo Bay, and praised the prison commander for implementing “standards and imposed a degree of professionalism that the nation can be proud of.”
Before Gorsuch arrived, the Justice Department issued a May 2005 memo declaring that “enhanced interrogation techniques” like waterboarding — which the Bush administration was employing at CIA “black sites” including Guantanamo and Abu Ghraib — were allowed under existing international and US laws.
In December 2005, Congress passed the Detainee Treatment Act on a 90-9 vote, prohibiting “cruel, inhuman, or degrading treatment or punishment” of any person imprisoned by the US government.
After much debate within the administration, Bush issued a signing statement (a move Gorsuch supported) outlining how the executive branch would interpret the law banning torture, implying that he as Commander-in-Chief could ignore this provision if necessary for “protecting the American people from further terrorist attacks.”
In Gorsuch’s first committee hearing on Monday ahead of the vote to confirm his nomination, Sen. Richard J. Durbin of Illinois brought up his concerns about the nominee’s hand in Bush’s War on Terror policies.
“Turns out you were deeply involved in this unprecedented signing statement,” Durbin said. “We need to know what you’ll do when you’re called upon to stand up to this president — or any president — if he claims the power to ignore laws that protect fundamental human rights. You’re going to have your hands full with this president.”
It is important to note that, as a Justice Department official, it was Gorsuch’s job to craft legal arguments and frameworks in order to defend the Bush administration’s policies. As he himself implored in a February 2006 email drafting a statement on the warrantless wiretapping, “I am but the scrivener looking for language that might please everyone.”
The Senate committee will continue to hold hearings on Gorsuch’s nomination this week, and he must pass a vote by the committee before advancing on to a vote by the full Senate. Gorsuch will need 60 votes to become the next Supreme Court justice, unless the Republicans vote to “go nuclear” and rewrite the Senate rules to require a simple majority.
Editor’s note: This story has been updated to clarify when Gorsuch was at the Justice Department and when he sent the email drafting the wiretapping statement.