Several print and broadcast political pundits who are generally liberals or moderates gushed over U.S. Supreme Court nominee Neil Gorsuch last week, often describing President Donald Trump’s conservative choice as “charming.”

I can’t believe anyone could use that word if they watched the Senate Judiciary Committee’s hearing on Gorsuch’s appointment. Why didn’t they pick up on at least one vital part of his record that is so offensive it should disqualify him from serving on the nation’s highest court?

Democrats on the committee did an excellent job of questioning some of the most controversial decisions Gorsuch has made. No one was more prepared than U.S. Sen. Dianne Feinstein (R-Calif.), who grilled the 10th U.S. Circuit Court of Appeals judge about his defense of the torture policies of George W. Bush’s administration, including waterboarding.

Gorsuch was a senior official with the Justice Department. One of his duties was to review “enhanced interrogation techniques” that were used against prisoners in the war on terror who were imprisoned at overseas CIA facilities.

Feinstein produced several documents that showed Gorsuch believed the torture techniques were necessary to extract information from captured enemy combatants. One was a set of talking points he prepared in 2005 that asked if “the aggressive interrogation techniques employed by the administration yielded any valuable intelligence” or “ever stopped a terrorist incident?” Gorsuch wrote “yes” in the margin.

The senator asked Gorsuch about a subsequent 7,000-page congressional report that debunked the theory that waterboarding produced any useful information. It concluded that when people are tortured, they lie and say anything they think their captors want to hear so they will stop.

Unbelievably, given his Justice post, the nominee said he wasn’t familiar with the definitive report on the subject that President Barack Obama later cited when he stopped the nation’s torture program. After Congress passed an anti-torture bill, Gorsuch helped prepare a signing statement for Bush that declared he could use his executive powers to ignore the law and continue the enhanced interrogation practices.

With no apology or regrets, Gorsuch defended his work that helped continue the use of waterboarding. “My recollection of 12 years ago is that that was the position that the clients were telling us,” he said. “I was a lawyer. My job was as an advocate, and we were dealing with detainee litigation. That was my job.”

His explanation that he was just following orders calls into question his judgment and should worry all Americans about his lack of humane values if he can’t even determine that waterboarding is undeniably torture.

Waterboarding induces drowning. The subject of the torture is bound to an inclined bench with his feet elevated. A cloth or plastic wrap covers both the nose and mouth, and the airflow is restricted for 20 to 40 seconds. Water is continuously applied from a height of 12 to 24 inches. The cloth is lifted to allow for three or four unimpeded breaths, and then the procedure can be repeated for up to 20 minutes.

Watch this reconstruction of a waterboarding event by BBC News

Former Vice President Dick Cheney, America’s No. 1 fan of waterboarding, still emphatically maintains this is not torture. So does his daughter Liz Cheney, now Wyoming’s lone U.S. Representative. She has no problem defending her father for unquestionably violating the 1949 United Nations Geneva Convention by approving the torture of prisoners.

Both Cheneys must know that Japanese soldiers who waterboarded Americans in World War II were prosecuted and sent to prison by the International Military Tribunal for the Far East for war crimes. According to PolitiFact Virginia, “Six Japanese generals who allowed water torture were executed, although we note they faced a long list of additional charges.”

Waterboarding was used during the Spanish Inquisition. When the U.S. State Department annually documents China’s human rights abuses, that nation counters that we’ve waterboarded and used other torture techniques against prisoners.

“We don’t do torture,” Dick Cheney maintains. “We never have.”

Chuck Todd of NBC’s “Meet the Press” once asked the ex-veep, “If an American citizen is waterboarded by ISIS, are we going to try and prosecute them for war crimes?”

“[The American] is not going to be waterboarded, he is going to have his head cut off,” Cheney answered. “It’s not a close call.” Well, that might be comforting to him, but even though torture comes in different forms, it’s still torture.

Independent U.S. Sen. Angus King of Maine once angrily suggested if Dick Cheney approves of waterboarding, he should volunteer to have it done to himself. I’ve always considered this a great idea, but it should be broadcast publicly so we can all finally see Cheney attempt to prove his point. It would likely be a short show, though — according to a 2007 ABC News report, CIA officials who have voluntarily been waterboarded have lasted an average of 14 seconds before capitulating.

As for myself, I’d spill my guts and confess to anything I was asked to on the way to being tied to the bench. And I bet Dick and Liz Cheney would, too.

Our new congresswoman may be the only American who’s more adamant about the virtues of waterboarding than her dad. She blasted Barack Obama for changing the Bush-Cheney policy. Liz Cheney told MSNBC that waterboarding Khalid Sheikh Mohammed 183 times in March 2003 was justified because the CIA believed the prisoner “had perishable information about imminent attacks on the United States of America.”

“And the decision was made [to waterboard him], it was absolutely the right decision, and certainly I hope that future presidents would make the decision again,” Liz Cheney said. “You’ve got to waterboard somebody because it means that you’re going to get information to save lives and prevent attacks.”

For the record, CIA officials say they obtained no valid information at all from Mohammed. That truth hasn’t kept President Trump from declaring that waterboarding can be a valuable tool, even though his own defense secretary, James Mattis, has recommended it never be used again.

“Torture is real torture,” Trump told Fox News’ Sean Hannity in January. “Waterboarding is — I’m sure it’s not pleasant, but waterboarding was just short of torture, when all of a sudden they made it torture.” Sign Trump up for a waterboarding session too, so for once maybe he’ll actually know what he’s talking about when it’s over. Tweet that, Mr. President.

Fortunately, if Trump tries to reinstate waterboarding he will have a fight on his hands with someone he doesn’t want to mess with: U.S. Sen John McCain (R-Arizona). The former American POW was held by the Vietnamese and endured five years of torture. He already has put Trump on notice to expect a court challenge. “I don’t give a damn what the president of the United States wants to do or anybody else wants to do,” McCain said. “We will not waterboard. We will not do it.”

Gorsuch is surely smart enough to know torture when he sees or hears about it, but he’ll probably keep dodging senators’ questions about waterboarding until he’s confirmed. If you’ve listened to much of his Senate hearing, you know he plays everything close to the vest and doesn’t reveal how he would rule on any controversial issue.

Never miss a Take — subscribe to WyoFile’s free weekly newsletter

I realize our news anchors, commentators and reporters have been overwhelmed lately with FBI and Senate probes about the Trump administration’s ties to Russia, $10 million annual pay-offs from Vladimir Putin’s billionaire buddy to the president’s former campaign chief, and covering the Republicans’ awful health care plan that would have caused an estimated 14 million Americans to lose their health insurance next year. There’s so much news being made by the GOP, there’s hardly even any time left to report on the latest terrorist attack.

But while I admire the Fourth Estate’s energy and commitment to covering every Trump scandal and tweet, I encourage it not to let Gorsuch get a free ride to the bench. He could be every bit the charming fellow some of the mainstream media makes him out to be, but I’d still like him to say he regrets ever helping try to justify torture. It could go a long way to making his charm offensive in the Senate seem a bit more genuine.

Avatar photo

Kerry Drake

Veteran Wyoming journalist Kerry Drake has covered Wyoming for more than four decades, previously as a reporter and editor for the Wyoming Tribune-Eagle and Casper Star-Tribune. He lives in Cheyenne and...

Join the Conversation


Want to join the discussion? Fantastic, here are the ground rules: * Provide your full name — no pseudonyms. WyoFile stands behind everything we publish and expects commenters to do the same. * No personal attacks, profanity, discriminatory language or threats. Keep it clean, civil and on topic. *WyoFile does not fact check every comment but, when noticed, submissions containing clear misinformation, demonstrably false statements of fact or links to sites trafficking in such will not be posted. *Individual commenters are limited to three comments per story, including replies.

Your email address will not be published. Required fields are marked *

  1. Gorsuch is a natural fit in an administration that is torturing the environment and vulnerable humanity.