Will Gorsuch Bend to Trump's Expanding Executive Power?

Supreme Court nominee Judge Neil Gorsuch fist-bumps four-year-old Charles Marshall III of Dover, Delaware, in a Capitol hallway in February. Jennifer Daskal writes that given the current political climate, understanding Gorsuch’s views are of critical importance. The record indicates that he was deeply involved in key cases regarding broad exertions of executive authority when in a Department of Justice leadership role from 2005 to 2006. The American public deserves to know about this. Alex Wong/Getty

This article first appeared on the Just Security site.

Over two weeks ago, Senator Dianne Feinstein, the ranking member of the Senate Judiciary Committee, sent Judge Neil Gorsuch a letter asking about his role in 10 high-profile cases that were litigated by the civil division at the Department of Justice (DOJ) while Gorsuch was the principal deputy to the associate attorney general.

These include cases involving warrantless wiretapping, detainee treatment and broad assertions of executive authority in national security matters. The answer to these questions—regardless of one's ultimate views on Gorsuch—should be made publicly available.

Specifically, the letter asks for pertinent information about Gorsuch's role in reviewing and editing briefs, developing case strategy and general involvement in litigation decisions in seven key national security cases (as well as three others that deal with abortion, same-sex marriage and Chevron deference), which were litigated during Gorsuch's time as principal deputy. All involved broad claims of executive power.

Gorsuch has already acknowledged spending a "substantial amount of time reviewing and editing trial and appellate court legal briefs and developing case strategy," while working in the associate's office. More details are needed, given the extremely expansive view of executive power taken in briefs filed by the DOJ during the time period when Gorsuch had such a significant role in overseeing its civil division.

The specific cases Senator Feinstein asked about cover the following:

The briefing filed during Gorsuch's tenure as principal deputy argued that "courts are not competent to second-guess judgments of the political branches regarding the extent of force necessary to prosecute a war;" that the president had "inherent" and presumably more or less unlimited authority to establish military commissions; and that the president's decision that the Geneva Conventions did not apply to the conflict with al-Qaeda was "binding on the courts."

As is now well known, the U.S. Supreme Court ultimately rejected these claims and ruled that the then-in-place military commissions were unlawful and that the Guantánamo detainees were in fact entitled to the humane treatment protections of the Geneva Conventions. (See 548 U.S. 557 (2006)).

  • The Habeas Cases

In at least three cases during Gorsuch's tenure, the DOJ took the position that the detention of individuals, including Americans, held by U.S. forces could not be reviewed by the courts; according to DOJ filings, this was instead the province of the executive branch.

In Omar v. Harvey, the DOJ argued that even an American citizen held by U.S. forces that were part of multinational forces in Iraq was not entitled to bring a habeas corpus challenge to his detention.

The briefing is replete with suggestions on matters involving national security and foreign relations, including the treatment of American detainees as inappropriate subjects for judicial intervention. According to the Department of Justice, the case raised "non-justiciable political questions implicating highly sensitive warmaking, national security and foreign relations functions that are constitutionally vested in the Executive and are not appropriate subjects for judicial review."

  • In two other cases litigated while Gorsuch was principal deputy—Boumediene v. Bush (when it was before the D.C. Circuit) and Kiyemba v. Bush (before the D.C. District Court)—the DOJ similarly argued that review of Guantánamo detainees' detention was outside the purview of the federal courts.

In Kiyemba, the DOJ fought, unsuccessfully, to prevent attorneys from meeting their clients—a handful of Uighurs that even the Bush administration acknowledged were simply in the wrong place at the wrong time—who were absolved of the label "enemy combatant" and eventually cleared for release.

The Supreme Court ultimately rejected the key claim of unreviewable discretion in its 2008 ruling in Boumedieneruling that the suspension clause governed the detentions at Guantánamo Bay, and therefore detainees were in fact entitled to habeas review of their detentions.

  • Warrantless Wiretapping

In American Civil Liberties Union v. National Security Agency, the DOJ took the extremely broad position that the state secrets doctrine precluded judicial review of the Bush administration's warrantless wiretapping program, even though the administration had publicly admitted the existence of the "Terrorist Surveillance Program" that was at issue in the case.

The government further asserted that the president's commander-in-chief authorities would provide the power to override otherwise applicable statutory limits on surveillance. According to relevant DOJ filings, it would be unconstitutional for Congress to curtail the president's efforts to engage in "international surveillance of the enemy during wartime that he determines to be essential to national security" (emphasis added; see page 18 here).

In other words, the briefing argued that Congress must defer to the president with respect to surveillance of suspected al-Qaeda and ISIS affiliates, even in situations when the surveillance is directed at Americans on U.S. soil. Although the Sixth Circuit Court ultimately sided with the government, the case was primarily decided on standing grounds, rather than on actual merits.

  • Broad Claims of Secrecy

In American Civil Liberties Union v. Department of Defense, the administration adopted the extremely broad view that it could not even confirm or deny the existence of the August 2002 Yoo memo on torture in response to a Freedom of Information Act request about legal analysis from the DOJ to the CIA regarding interpretation of the United Nations Convention Against Torture. (This is also the case that led to the enactment of the Protected National Security Documents Act of 2009, which ultimately protected photographs of detainee abuse from being disclosed.)

And in Doe v. Gonzales, the DOJ defended a permanent gag order on recipients of National Security Letters (NSLs); it also argued that recipients of such letters could not bring a pre-enforcement challenge and were instead obligated to comply. (The subsequently revised NSL statute now allows pre-enforcement review, as well as possible consultation with an attorney, which was written to avoid the constitutional questions the government's position had raised.)

Of course, as Gorsuch will likely point out, all of these cases were litigated with an eye toward defending his client: the United States government. And it would be unfair to assume that positions taken on behalf of a client are necessarily the same positions that Gorsuch would take as an independent arbiter on the nation's highest court.

But at the same time, it is fair to probe the issue—to figure out what positions he took as principal deputy; to seek to understand how much he pushed for and supported such broad assertions of executive authority (many of which were ultimately rejected by the judicial branch); and to assess whether these views reflect his current thinking on these critically important issues now.

This is particularly true these days, in light of a president who claims total, unreviewable discretion of his immigration policy, demonstrates a willingness to assert national security justifications without pointing to any credible evidence in support and has shown extreme contempt for anyone who disagrees with him—including judges, the media and his own intelligence community.

Given the current political climate, understanding Gorsuch's views on executive authority is of critical importance.

The record indicates that he was in all likelihood deeply involved in some of these key cases when he was in a leadership role in the DOJ between 2005 and 2006. If so, the American public deserves to know this.

In several of the cases, the briefing reached beyond what was required to make the government's case, bootstrapping into the government's statutory arguments broad claims about executive power.

In the Hamdan v. Rumsfeld briefing, for example, the DOJ argued that "Congress's multiple authorizations of the President's use of military commissions in the ongoing conflict with al Qaeda obviate the need to consider the President's inherent authority to act in the absence of such authorization." But then it went on to address the president's inherent authority nonetheless, articulating the view that the president "undoubtedly" possessed this authority.

To what extent did Gorsuch push and support these additional arguments? And what are his views now?

Jennifer Daskal is an associate professor at American University Washington College of Law.