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Today Senator Chuck Schumer announced the Democratic Party would attempt to block the confirmation of Judge Neil Gorsuch. Schumer argued that Gorsuch favours corporate interests over the "little guy", pointing in particular to a dissenting opinion in the "frozen trucker" case. In that dissent, Gorsuch argued that a driver who had not waited beside a vehicle awaiting repairs was ineligible for protection from being fired. Alluding to what he believed was Gorsuch's deficit of compassion, Schumer argued: "We do not want judges with ice water in their veins."

There are many good reasons to oppose Gorsuch's confirmation. That said, it is remarkable that the most troubling evidence has not received more attention. Gorsuch is an executive branch loyalist. He was willing to accept any argument that the President's prerogatives are unlimited, even when this allegedly includes the power to order torture.

Gorsuch, like almost every Republican nominee of the post-Watergate era, was nominated after extensive service in sensitive and highly political positions within the executive branch. In his case, this included service in the Department of Justice's Office of Legal Counsel, where the most extreme claims of executive power were developed during the 'war on terror'. Gorsuch joined that office after it had become clear that its opinions had helped create a dystopian parallel legal order. Multiple scandals at Guantanamo Bay and Abu Graib had already exposed the horrific consequences of enabling an executive that believed it had the constitutional authority to approve indefinite arbitrary detention, torture, and extrajudicial killing.

While at the OLC, Gorsuch fought to keep the torture program secret and defended the executive from those who would hold it accountable, including from Khalid El-Masri.  El-Masri was a German citizen kidnapped by the CIA owing to a mistaken identification; after being flown to a black site in Afghanistan, tortured, and sodomized, he sued the United States.  Gorsuch blocked the lawsuit by asserting the state secrets privilege. (El-Masri ultimately proved his claims in the European Court of Human Rights). For derailing El-Masri's lawsuit, Gorsuch was praised by his bosses in the executive branch for "protecting the ability of the institution of the Presidency" --in other words, for maintaining the unaccountability and impunity of an executive that was determined to commit gross violations of domestic and international law.

Gorsuch also served as a cheerleader for the Guantanamo Bay detention camp, writing to its commander in 2005 that "your colleagues have developed standards and imposed a degree of professionalism that the nation can be proud of . . . [which] makes my job of helping to defend it before the courts all the easier." This was at the height of the torture program; a year later, three detainees would be tortured to death at an off-the-books black site at GITMO known as "Camp No."

Gorsuch attempted to unconstitutionally deprive courts of the ability to review petitions from GITMO, by inserting jurisdiction-stripping provisions into the Detainee Treatment Act.  Afterwards, he crowed that "The Administration's victory is not well known but shouldn't be understated." (Fortunately, these provisions were later struck down by the Supreme Court).  Conversely, Gorsuch lamented the Act's restrictions on torture. He argued that Senator John McCain's scruples--based on his experiences being tortured as a prisoner of war--were trivial, writing "Did torture elicit useful intel? Yes." He then drafted a signing statement that indicated that the executive reserved the right to ignore the torture ban; it contained the breathtaking claim that courts could not review the actions of the Commander-in-Chief, "consistent with the constitutional limitations on the judicial power."  In plain English, Gorsuch argued that the President has the power to ignore the courts.

While other lawyers resigned rather than become accomplices to torture, Gorsuch relished his opportunity to contribute. Jameel Jaffer (former Deputy Director of the ACLU and author of a book on the OLC's "torture memos") noted that "The documents provided by the Justice Department to the Committee suggest that Judge Gorsuch was comfortable with the policies and with the Bush administration’s defenses of them, and, indeed, that it was challenges to the policies that troubled him." Indeed, Gorsuch concurred that it was "surprising that more has not been made" of the release of the names of the law firms that had provided free legal assistance to the Guantanamo Bay detainees (or, as he and his colleagues put it "help[ing] alleged terrorists"), many of whom were later proven by those firms to be wholly innocent.

While Gorsuch has managed to avoid providing any indication of how he would rule on important issues like health care and reproductive rights, there can be no doubt about how he would rule on challenges to presidential powers. While he will blithely concede that "no man is above the law", for years he attempted to create a legal order in which the president--alone--had the power to determine whether his actions were legal and constitutional. As this included the ability to authorize torture, Gorsuch, like the six Bush Administration officials who were indicted by Judge Balthasar Garzon, should not be seated on the bench. He should be standing at the bar of justice as a defendant.  Rather than focusing on the ice water in his veins, Senate Democrats should be paying more attention to the blood on his hands.

 


Comments

03/24/2017 9:06am

The things that Neil Gorsuch said are unacceptable. This country is built over ethics and not cold blooded ideals. Such ideals will lead us nowhere and we have go back and live in caves.

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04/11/2017 12:26am

If a public servant wishes to serve his countrymen, he must set aside his personal interests to serve them with utmost responsibility. If he or she wishes to only just establish name in the public or be popular, then they should just join showbiz. They don't deserve to be called as a public servant. There are many ways to help your countrymen. Always make sure that your interest to be a politician is based on your real interest to serve the country.

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04/11/2017 1:49am

It's time for us to think deeper about this issue... Let's get stared...

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