US Senator Dianne Feinstein and others have expressed important reservations over Supreme Court nominee Neil Gorsuch’s record and views on torture during the confirmation process.
Communications disclosed as part of the process indicate that while Gorsuch was a lawyer at the Justice Department during the George W. Bush administration, he defended the use of executive authority to attempt to get around laws banning torture. He also worked as part of a legal team that supported stripping detainees at Guantanamo Bay of the right to challenge their detention in federal court – a position ultimately rejected by the Supreme Court in Boumediene v. Bush. Gorsuch also defended asserting state secrecy rules to deny Khaled el-Masri, whom the US government now admits it wrongfully detained, the right to pursue in US courts allegations he was tortured.
When asked about some of these positions during his confirmation hearing, Gorsuch said he was just working as a member of a team defending his client – the executive branch. But that does not sufficiently explain his position or reassure the public that he wouldn’t back a future executive authority attempt to return to torture, which is illegal not only under US but also international law. His position on torture is particularly important given President Donald Trump’s statements supporting the use of torture during the campaign, though Trump has since qualified his position, saying he’d defer to the judgment of Defense Secretary James Mattis, an outspoken critic of torture.
How Gorsuch views torture are also important because the US has not adequately reckoned with its use of so-called “enhanced interrogation” techniques after the September 11, 2001 attacks. Though the Senate Intelligence Committee in 2014, then led by Senator Feinstein, issued a groundbreaking 499-page summary of a report it drafted that disclosed the extent and brutality of the Central Intelligence Agency’s secret detention and interrogation program, the full 7,000 page report remains classified, and the entire story about the program has yet to be told.
There has also been no justice or even compensation for the victims of the CIA program or hundreds of detainees abused while in US military custody. It is critical that senators demand that nominees like Gorsuch — who, if confirmed, may be in a position to judge the legality of such practices again — provide more about their record and views on torture.