I’m reading through the pile of documents that Supreme Court nominee Neil Gorsuch provided to the Congress. The documents show a legal advisor helping the Bush administration justify their torture policy. Although being portrayed as a friendly frat guy, these documents suggest that Gorsuch is a more dangerous individual who is not qualified for the Supreme Court. This essay is a discussion of a single email Gorsuch writes in a 2005 after his visit to the military detention facility in Guantanamo Bay Cuba.
The email is a message coordinating strategy to defend Guantanamo. The email is to other lawyers who represented the positions of the Bush administration. Gorsuch writes the email giving three suggestions about how to defend the use of the base in Guantanamo Bay as a detention, interrogation and torture facility. His first suggestion is to destroy the evidence:
“1. Camp X-Ray. It serves no current purpose, is overgrown and decaying. Gen Hood would understandably like to tear it down. Of course, there may be some evidentiary concerns with this, but can we at least tee this up for a prompt resolution? Eg — notify counsel of our intent to remove it or seek advance court authorization?”
-Neil Gorsuch, released email from November 10, 2005. “GTMO trip”
His suggestion to tear down camp X-Ray suggests a desire to cover the nastier parts of the torture at Guantanamo. Gorsuch’s first suggestion when he returns from a trip to Guantanamo Bay is to destroy the original detainee holding facility despite noting: “Of course, there may be some evidentiary concerns with this . . . ”
This memo is from November 2005. A couple of months earlier a federal judge had ruled that Camp X-Ray was protected as evidence. Here is Carol Rosenberg, in the Miami Herald reporting on the legal stakes of destroying Camp X-Ray:
“In July 2005, U.S. District Judge Richard Roberts became the first federal judge to impose a protective order on Guantánamo, ordering the government to “preserve and maintain all evidence, documents and information.”
At the time, the Bush administration argued that courts had no right to meddle in what the White House wanted done here.
Defense Department lawyers interpreted it to mean that nobody should touch Camp X-Ray, even though it officially closed in April 2002, leaving it a ramshackle rot of plywood interrogation huts and cage-like cells engulfed in weeds and wildlife droppings.
For now, that’s where plans for closure start. The FBI team that spent a week earlier this month creating digital imagery did it for Pentagon lawyers, who will ask federal judges if they will accept imagery as a substitute.
But defense lawyers don’t want anything removed or razed.
First, dozens of captives are still suing for their freedom in federal court and their lawyers say their confinement could be used to challenge confessions as bogus, coerced, whether they are tried in the future or set free.
Later, some may want to sue the U.S., said New Mexico criminal attorney Nancy Hollander, who argues that her Mauritanian client Mohammedou Slahi, 38, was subjected to “cruel, inhuman and degrading treatment” at Guantánamo. Never been charged with a crime, he is suing for his freedom.
Detention center staff defend their work as “safe, humane and transparent,” even as they declare portions of the prison camps off-limits to media and lawyers.
But, says Hollander: “I think they should preserve it all. Camp X-Ray figures in too many cases in terms of how people were treated, how people were interrogated.”
“There are interrogation rooms throughout Guantánamo’s prison system. There are loudspeakers. There are strobe lights. The bottom line for me is that Guantánamo is a crime scene and that it should be preserved.”
Moreover, she said, Slahi was moved around the base in blindfolds — at one point taken into the bay on a boat and threatened with death. He says U.S. forces beat him, subjected him to a systematic campaign of sleep deprivation and threatened his family. If she ever gets to look at intelligence logs of his interrogations, she may want to send investigators to examine the sites.
“Many of those things are violations of the conventions against torture,” she said. “And I believe he was tortured, and he received cruel and degrading treatment in violation of the law. There may be civil suits.”
– Carol Rosenberg, Miami Herald November 15, 2009. http://www.miamiherald.com/news/americas/guantanamo/v-print/story/1335533.html
This couple of years are the apex of political and legal scrutiny on the Bush Torture policies. And they were Gorsuch’s responsibilty. Charlie Savage explains in the New York Times:
“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.”
– Charlie Savage. “Neil Gorsuch helped defend disputed Bush-era torture policies.” New York Times, March 15, 2017.
Gorsuch, fresh back from Guantanamo zips off a 3 point memo to provide more robust support for Guantanamo. He casually suggests destroying camp X-Ray despite the legal prohibition to do so. Why might a Bush Administration lawyer hope to protect Guantanamo from legal scrutiny? Oh yeah, turns out the CIA was running a top-secret torture detention facility out of Guantanamo. Here is Carol Rosenberg in the Miami Herald in 2014:
“In 2004, as the U.S. Supreme Court was poised to let Guantánamo captives consult lawyers for the first time, the CIA spirited some men who now face death-penalty trials from a clandestine lockup at the U.S. Navy base — and didn’t tell Congress.
Two years later, even as President George W. Bush announced at the White House Rose Garden that the spy agency had transferred its most prized captives to Guantánamo for trial, the alleged al-Qaida terrorists were still under control of the CIA.
The release of 524 pages of the 6,700-page Senate Intelligence Committee report confirms for the first time that the CIA used Guantánamo as a black site — and continued to run the prison that held the alleged 9/11 mastermind Khalid Sheik Mohammed and 13 other men even as the Pentagon was charged to prosecute them.
It also offers graphic details that the U.S. government has hidden from view in the pretrial hearings of six captives it seeks to execute — about the sexual torture and Post Traumatic Stress Disorder of the alleged USS Cole bomber and why a sickly looking accused 9/11 conspirator sits on a pillow at court proceedings.
But it does not resolve whether the spy agency that systematically hid its prized interrogation program from court and congressional scrutiny has ceded control to the U.S. military of the secret facility where the men are imprisoned. And, if so, when?
“I would find it hard to believe that they let go. Throughout this entire program, the CIA is running from the law at every turn,” says Navy Cmdr. Brian Mizer. He calls the revelation that his client, Abd al Rahim al Nashiri, the accused planner of the USS Cole bombing, “had a tube inserted into his anus” tantamount to rape.”
– Carol Rosenberg, Miami Herald. December 11, 2014. http://www.miamiherald.com/news/nation-world/world/americas/guantanamo/article4434603.html
Gorsuch consistently ran interference and helped to cover-up the potential crimes of Guantanamo. That original quote is a grotesque artifact and it is just a single paragraph. Gorsuch leans so heavily in favor of the Republican President of the time this email is a documentation of his hustle to find justifications and run interference.
In this same November 10, 2005 email Gorsuch suggests bringing federal judges to Guantanamo to sway their opinion of Guantanamo. Gorsuch writes:
“2. Judges trip. If the DC judges could see what we saw, I believe they would be more sympathetic to our litigating positions. Even if habeas counsel objected to such a trip, that might not be a bad thing. What do they want to hide, a judge might ask? Habeas counsel have been eager to testify (sometimes quite misleadingly) about conditions they’ve witnessed; a visit, or even just the offer of a visit, might help dispel myths and build confidence in our representation to the court about conditions and detainee treatment. Of course there are countervailing considerations — e.g., can judges come take a view under such circumstances? do any judicial ethical considerations exist? who bears the costs? (. . . )”
-Neil Gorsuch, released email from November 10, 2005. “GTMO trip”
Gorsuch’s bias to defend Guantanamo at all costs and to sway judges seems offensive to me. Federal judges have been the only realistic check on potential abuses at the facility. Is Gorsuch trying to prevent rulings such as the judge who ordered Camp X-Ray be preserved as evidence? It seems this way.
Neil Gorsuch is a danger to the United States. President Trump has widely called for an expansion of the use of Guantanamo. Including at times for illegally sending United States citizens to Guantanamo. Here William Finnegan explains in the New Yorker:
President Donald Trump has never been particularly lucid on the subject of the military prison at Guantánamo Bay, Cuba. He is for it, of course. Early last year, at a campaign rally, he said, “I watched President Obama talking about Gitmo, right, Guantánamo Bay, which, by the way, which, by the way, we are keeping open. Which we are keeping open . . . and we’re gonna load it up with some bad dudes, believe me, we’re gonna load it up.” This cartoonish threat raised the question of where or in which putative wars the United States would find these new inmates. Trump seemed to think, in a later interview, that he could send Americans accused of terrorism to Guantánamo to be tried by military commissions. But American citizens cannot, by law, be held at Guantánamo. Details, for Trump.
– William Finnegan. “President Trump’s Guantánamo Delusion” New Yorker http://www.newyorker.com/news/daily-comment/president-trumps-guantanamo-delusion
Gorsuch seems to be a torture-leaning, executive branch yes-man in this email. The United States must have a robust Supreme Court who can prevent or respond to illegal presidential actions. Sadly, Gorsuch has shown us that he is not that judge.