Gorsuch Emails Reveal a Staunch Bush Era Torture Defender

By Seung Min Kim, Politico

19 March 17

ore than a decade ago as a lawyer in the George W. Bush Justice Department, Neil Gorsuch recommended that federal judges visit Guantanamo Bay as a way of becoming “more sympathetic” to the Bush administration’s defense of its detainee policies.

“If the DC judges could see what we saw, I believe they would be more sympathetic to our litigating positions,” Gorsuch wrote to other DOJ officials in a Nov. 10, 2005 e-mail, included in new documents sent to the Senate Judiciary Committee on Friday in advance of the Supreme Court nominee’s confirmation hearing next week.

Gorsuch continued: “A visit, or even just the offer of a visit, might help dispel myths and build confidence in our representations to the Court about conditions and detainee treatment.”

The e-mails shed further light on Gorsuch’s involvement in the national security policies of the George W. Bush administration – a major focal point for Democrats on the Judiciary Committee as they prepare to meticulously scrutinize Gorsuch’s record in the four-day confirmation hearing kicking off Monday.

Gorsuch served as principal deputy associate attorney general for about a year, until he was elevated to the Denver-based 10th U.S. Circuit Court of Appeals.

California Sen. Dianne Feinstein, the top Democrat on the Judiciary Committee, requested earlier this week that the additional DOJ documents be made public.

Acting assistant attorney general Sam Ramer wrote to Feinstein in a letter accompanying the new documents that while nearly 175,000 pages connected to Gorsuch have been released, and although some of the paperwork has confidentiality concerns, DOJ was releasing the documents because of the “extraordinary circumstances involving a Supreme Court nomination.”

“The department does not anticipate making any further productions regarding this matter,” Ramer told Feinstein.

The disclosure of Gorsuch’s 2005 trip to the U.S. detention facility at Guantanamo Bay came in a separate trove of Justice Department documents released by the Senate Judiciary Committee earlier this month that detail the Supreme Court nominee’s time at DOJ. Gorsuch wrote to then-Brigadier Gen. Jay Hood, the U.S. commander at Guantanamo Bay, that he was “extraordinarily impressed” with the conditions at Gitmo.

“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,” Gorsuch told Hood.

The 120 pages sent to the committee on Friday included more details about Gorsuch’s visit to the U.S. military facilities at Guantanamo. For instance, Gorsuch also recommended in the Nov. 10, 2005 email that Camp X-Ray, a temporary detention facility within Gitmo, “serves no current purpose, is overgrown and decaying.”

“Gen Hood would understandably like to tear it down,” Gorsuch wrote to other DOJ officials. “Of course, there may be some evidentiary concerns with this, but can we at least tee this up for a prompt resolution?”

Separately, the newly released e-mails show Gorsuch pressed other Bush administration officials to release a detailed signing statement when former President George W. Bush signed a hotly debated torture ban pushed by Sen. John McCain (R-Ariz.) into law in late December 2005.

The anti-torture proposal pitted McCain, who was tortured as a prisoner of war during Vietnam, against the Bush White House for months. But when the McCain measure was about to become law, Gorsuch advised other Bush administration officials to draft a signing statement to help spin it in their favor, as well as help lawyers in the “inevitable lawsuits that we all see coming,” according to a Dec. 29, 2005 e-mail from Gorsuch to other Bush administration officials.

Another advantage, in Gorsuch’s view, was that a signing statement would make clear the Bush administration’s view that the anti-torture measure “is best read as essentially codifying existing interrogation policies.”

Gorsuch wrote that he saw little downside to making the Bush administration’s positions known in this way. In the e-mail, he wrote: “While perhaps not common, neither is it unprecedented to use signing statements in this fashion to advance the executive’s interests and indeed, some statements have been cited by the courts as a persuasive sources of authority in efforts to divine statutory intent.”