Published in partnership with Shadowproof.
Supreme Court nominee Neil Gorsuch was confronted over the fact that he disparaged Guantanamo lawyers and expressed regret during his confirmation hearing. But while Gorsuch made this statement, he did not address equally troubling claims about Guantanamo lawyers fabricating claims of abuse and torture.
Senator Dick Durbin asked Gorsuch, who served as principal deputy to the associate attorney general in President George W. Bush’s administration, about an email he sent.
“The subject line was, ‘Elite Law Firm Pro Bono Work For Terrorists,’ and you included an article about conservatives criticizing lawyers who were representing Guantanamo detainees and a list of their law firms,” Durbin said. “You sent this email to someone working on this committee, and you said, ‘I thought you might find this of interest. It seems odd to me that more hasn’t been made of this. See especially the list of firms below.’”
“This was one of several emails you sent criticizing and drawing attention to lawyers representing Guantanamo detainees. Chief Justice John Roberts when he appeared before this committee was asked about the fact that he’d represented some unpopular clients and said-here’s what he said, ‘Our founders thought they were not being given their rights under the British system to which they were entitled and by representing the British soldiers John Adams helped show that what they were about was defending the rule of law and not undermining it. And that principle that you don’t identify the lawyer with the particular view of the client or the views that the lawyer advances on behalf of a client is critical to the fair administration of justice.’”
Gorsuch responded, “My friend Neal Katyal, who introduced me, successfully represented some of those detainees. And I have nothing but admiration for those lawyers, and the email you are referring to was not my finest moment blowing off steam with a friend privately. The truth is I think my career is better than that.”
Except, on November 10, 2005, Gorsuch contended habeas counsel representing detainees were tricksters after he took a trip to Guantanamo.
“If the D.C. judges could see what we saw, I believe they would be more sympathetic to our litigating positions,” Gorsuch wrote. “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 representations to the court about conditions and detainee treatment.”
Wondering about ethical considerations if judges were granted access, he asked if habeas counsel would have to be given a chance to make a presentation to judges if Major General Jay Hood gave a presentation. “What other tricks might habeas counsel might seek to try during such a trip?”
Wells Dixon, a senior staff attorney for the Center for Constitutional Rights who represented Guantanamo detainees, told Shadowproof he appreciates Judge Gorsuch’s “clarification” and “statement of admiration for the Guantanamo lawyers,” but noted Gorsuch once believed, as the email shows, that lawyers were misleading the public on torture and abuse of detainees.
“History has shown that we were right about torture and abuse at Guantanamo. There is no serious debate at this point about the fact that Muslim men were sent to Guantanamo to be tortured and abused,” Dixon declared.
Gorsuch contended lawyers for Guantanamo detainees might leak classified information. To that, Dixon said, “I’m not aware of any instance involving habeas counsel spilling classified information, unlike numerous senior government officials, including the former CIA director David Petraeus, who gave top secret information to his mistress. If I had done that or any of my habeas colleagues had done that, we’d be in jail.”
Altogether, Dixon argued the emails the Senate Judiciary Committee released from Gorsuch’s time in the Justice Department raise questions about whether he could decide a Guantanamo case “fairly and impartially.” (At least one or two Guantanamo cases will be before the Supreme Court in the next year or two.)
Dixon recalled the attacks on attorneys who represented detainees back in 2005, 2006, and 2007. There were very conscious efforts to persuade corporate CEOs to make outside counsel choose between representing business clients and Guantanamo detainees. This strategy did not succeed.
“That was the only time that we, as counsel for Guantanamo detainees, have ever been concerned that the government would come after us for representing Guantanamo detainees and for advocating that Guantanamo be subject to U.S. and international law, including the Geneva Conventions,” Dixon shared.
CCR was responsible for the first cases brought in 2002 in defense of detainees’ due process rights. The Rasul v. Bush decision by the Supreme Court not only gave detainees the right to challenge their detention but made it possible for lawyers like Dixon to go to Guantanamo and meet with detainees to hear their stories.
The idea that the government would create a “law-free zone,” Dixon recalled, “ran contrary to everything we believed.” It is why lawyers stepped up to represent individuals detained at Guantanamo.
Detainees would have had “no ability to challenge the legality of their detention,” if private counsel or private law firms had not stepped forward to represent them.
With Donald Trump as president, there is trepidation over how the government will respond if alleged Islamic State fighters are brought to Guantanamo. But Dixon believes “if a call went out to the private bar to represent these men with the Center for Constitutional Rights,” lawyers would answer.
The political climate makes it a virtual certainty that one of those cases would reach the Supreme Court and Gorsuch could play a key role in the decision.
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