As reported by the New York Times’ Charlie Savage, Supreme Court nominee Neil Gorsuch was “at the center of both litigation and negotiations with Congress” over the George W. Bush administration’s positions on “detainee abuses, military commissions, warrantless surveillance and its broad claims of executive power” during his tenure as a senior member of the Justice Department. Should Gorsuch be confirmed to the Court, he is likely to have to rule on the extent of such presidential powers.
The election of Donald Trump raises the specter of the reappearance of radical claims that the president has unbounded powers in the national security arena that are not subject to judicial review. Those claims, advanced for years by the Bush administration in its “war on terror,” were ultimately rejected by the courts. But whether they would be rejected again depends on who is sitting on the Supreme Court.
Trump does not so much as pay lip service to the constitutional separation of powers designed to ensure that the president abides by the law even when he claims a national security justification. Instead, Trump threatens war crimes — torture, killing civilians, pillaging oil — and talks as if the president is above the law. Trump does not pledge fealty to constitutional principles or the rule of law; to the contrary, he attacks the independence of the judiciary, mocking individual judges. Last month, his senior adviser complained that “We have a judiciary that has taken far too much power and become in many cases a supreme branch of government,” while “the powers of the president to protect our country are very substantial and will not be questioned.”
At this moment, the makeup of the Supreme Court could not be more important in preserving the rule of law.
President Bush’s claims of unilateral and unreviewable national security powers, advanced by administration lawyers, including Vice President Cheney’s counsel, David Addington, and DOJ lawyer, John Yoo, lost in court, and his policies were ultimately changed. But Trump’s administration could try and resurrect them.
The Senate needs to find out Gorsuch’s views on these issues before voting on his nomination. While there is not much yet in the public record about them, what there is, raises troubling questions about his commitment to independent judicial review of a president’s national security claims.
When Gorsuch took a job at the Justice Department in 2005, the department — then headed by President Bush’s former White House counsel Alberto Gonzales — was in the midst of defending radical claims of unreviewable presidential authority to act in the name of national security. Gorsuch, as Principal Deputy to the Associate Attorney General, became deeply involved in that work.
President Bush claimed that he could act not only without Congress, and in secret, but that he could violate the law if he decided that national security required it, and the courts had no power to review his actions. These were not academic claims, they were made in defense of outrageous abuses of individual rights carried out in the name of the “war against terror.”
In secret, Bush ordered warrantless wiretapping of Americans in violation of the law. He ordered the military to seize American citizens and hold them incommunicado without a lawyer or a trial, so they could be interrogated in secret. Relying on his November 2001 “Military Order №1,” Bush ordered the military to seize a non-citizen lawfully present in the United States and hold him without trial or access to a lawyer. The president claimed that the Geneva Conventions did not apply to the war in Afghanistan, that the United States could engage in horrific physical and mental abuse of detainees, and that the courts had no power to intervene. The Justice Department even wrote that the president could violate the law and authorize torture, although that administration claimed that its program to brutalize and abuse detainees wasn’t torture. (Trump, on the other hand, is forthright about his support for torture.) Bush also claimed the power to authorize military commission trials on his own with rules written by the military. The Bush Justice Department engaged in a years-long, although ultimately unsuccessful, effort to deny the historic right of habeas corpus to detainees, all while continuing to provide secret approvals for the CIA interrogation program to torture some of those same detainees.
The case concerned first whether detainees being held in territory in the exclusive control of the United States, Guantanamo Bay, had the right to file a petition for habeas corpus demanding court review of the legality of their detention, a right first recognized in the Magna Carta. For years, the Bush administration argued that they did not have the right to do so, until the Supreme Court finally ruled in 2008 that they did. The administration deliberately chose to argue against the right to habeas corpus — claiming that the courts should not review the detentions — instead of simply arguing that the detentions were lawful.
The Hamdan case also addressed whether the President could set up military commissions on his own when they had not been authorized by Congress. Again, the administration chose to rely on claims of presidential power, instead of simply seeking congressional authority to establish commissions. Only after the Supreme Court rejected the commissions created by the president on his own, did the administration seek and obtain congressional authorization for commissions.
Finally, the government argued in the Hamdan case that it was not bound to follow the Geneva Conventions in its “war on terror,” and again the court rejected the argument. Bush had claimed that he alone could decide that the United States was not required to follow the Geneva Conventions, including its prohibitions on torture and cruel treatment, despite U.S. leadership in drafting and signing them. The claim that the United States could simply ignore the Geneva Conventions was the core legal claim underlying the administration’s torture program.
While the documents about Mr. Gorsuch’s tenure at DOJ working on this case are still incomplete, they contain no indication that he disagreed with or questioned any of these radical legal positions taken by the administration.
Democratic lawyer Neal Katyal, who argued and won Hamdan, wrote in the New York Times to urge confirmation of Judge Gorsuch because he “will not compromise principle to favor the president who appointed him” and has a “deep conviction about the role of the judiciary in preserving the rule of law.” But the question isn’t whether Gorsuch will stick to his principles. The question is: what are those principles?
We do not know what Gorsuch believes about the role of the judiciary in reviewing actions undertaken by a president who claims national security. We must make sure that the next Justice agrees that war is not a blank check to a president, and that the Court, not the president, has the last word on the Constitution and the law, even in matters involving national security.
Kate Martin is a Senior Fellow at American Progress where she works on issues at the intersection of national security, civil liberties, and human rights. The New York Times’ Taking Note blog described her as “an expert on surveillance and detention, and a leading advocate for the rule of law in the so-called ‘war on terror.’” Before coming to American Progress, Martin served as director of the Center for National Security Studies for more than 20 years.
ThinkProgress is an editorially independent news site housed in the Center for American Progress.