(ANTIMEDIA) Even though Democrats on Capitol Hill are fighting tooth-and-nail against Neil Gorsuch’s confirmation to the Supreme Court, it’s almost impossible to win the battle. Senate Majority Leader Mitch McConnell has asserted “it’s up to the Democrats” whether or not Gorsuch gets confirmed, but many political analysts interpret his statement to mean that he’ll pull their filibuster — essentially changing the rules of the Chamber.
Assuming he is confirmed, Gorsuch is likely to see a Guantanamo Bay case early in his time on the bench. The Cuba-based American prison has been one of the most hotly contested legal debates in the past two decades. It’s an ethical and legal dilemma for a number of reasons. First, most of the prisoners have not been charged, and a large segment of them have been cleared for transfer. In 2013, a Boston University article noted that only six of the 166 detainees “face[d] any formal charges.”
Many believe the way Guantanamo operates is in violation of the Geneva convention. The Bush administration took the stance that “the Geneva Conventions did not apply to ‘unlawful enemy combatants,’ such as al-Qaeda and the Taliban.” In 2006, the Supreme Court presided over Hamdan v. Rumsfeld and sided with Hamdan. Unfortunately, that did little to change the conditions in Guantanamo Bay or the way it operates.
Now the Supreme Court is once again being asked to rule on issues related to the notorious facility. The first defendant, Yemeni-born Ali Hamza Ahmad Suliman al Bahlul, was convicted on three charges relating to his role as a propagandist for al-Qaeda. However, those are not international war crimes — remember, the government’s defense of the center was that it was used to detain war criminals. Bahlul’s lawyers posit that his offenses are not international war crimes. A Harvard Law blog outlined the case, essentially writing that Bahlul was tried for domestic crimes under a military court.
The second case, al Nashiri v. Obama, features a defendant who is facing charges for bombings he may have been involved in during 2000 and 2002. His attorneys are making a similar argument — that the statute that allows him to be tried by a military commission was not put in place until 2001. Therefore, they argue, there is no basis to try him as a foreign agent of war rather than as a civilian.
CNN reported that “the Trump administration is likely to respond within 30 days,” but if President Trump’s campaign rhetoric is any indication, it certainly doesn’t look good for Nashiri and Bahlul. During his stump speeches, Trump eloquently declared that he intended to “fill [Guantanamo Bay] up with some bad dudes.” Obama promised — and failed — to shut down the facility, though at the time he left office there were fewer than fifty detainees still being held at the Cuban base. That’s a big step down from the 680 who were at the prison in 2003.
With Neil Gorsuch on the court, conservatives will have the majority. And like Trump, Gorsuch is an admirer of Guantanamo Bay. According to the New York Times, the judge actually toured the facility in 2005 — the same year a C.I.A. memo showed two suspected terrorists had been waterboarded 266 times. Following his visit, Gorsuch wrote a letter to the warden stating his visit made the “job of helping explain and defend it before the courts all the easier.”
The New York Times also acquired a series of emails between Gorsuch and a number of lawmakers from around the time of the 2006 Supreme Court case. In the opening of those emails, Gorsuch even referenced the defendant and tried to find ways to structure a bill that might shore up the power of the military courts.
It’s likely it will be a few more months before the two Guantanamo cases will come before the Supreme Court, by which time Gorsuch will almost certainly be on the court. But if his past leanings are any indication, it seems inevitable that he will rule against the suspected terrorists. In particular, he will likely rule against their argument that they cannot be tried as war criminals when charged with domestic crimes.
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