Prepare to Welcome One of the Guys Behind Bush’s Torture Memos to the Federal Bench

Trump nominee Howard Nielson once questioned a gay judge’s impartiality.

Howard Nielson appears before the Senate Judiciary Committee in January.

Let our journalists help you make sense of the noise: Subscribe to the Mother Jones Daily newsletter and get a recap of news that matters.

The Senate Judiciary Committee is scheduled to vote on another round of potential federal judges this morning, as Republicans continue to move Trump’s nominees forward at a quick pace. Howard Nielson, nominated to be a United State District Court judge in Utah, is expected to draw special attention.

Since Trump nominated him in September, Nielson has come under fire from liberal advocacy groups, Democratic senators, and even retired military officials. In a January judiciary committee hearing, Nielson faced questions about a motion he once argued against a gay judge and his links to the George W. Bush “torture memos.”

Nielson worked for the Justice Department’s Office of Legal Counsel from 2003 to 2005 under Stephen Bradbury, one of the authors of a series of memos that helped provide legal underpinning for the CIA’s Bush-era interrogation programs. The exact nature of Neilson’s involvement in those memos was unclear at the time of his nomination, but in response to questions from the Senate Judiciary Committee, Nielson acknowledged he had given input on “enhanced interrogation techniques,” but explained that final decisions had been left to senior officials.

Nielson was more directly involved in at least one similar document: In 2005, while serving in the OLC, Nielson wrote a memo arguing that the Geneva Convention ought not apply to anyone detained by US forces in Afghanistan. Beth Van Schaack, former war crimes expert at the U.S. Department of State who has written extensively about Nielson’s memo, argues that “if Nielson’s theory of the treaty were to prevail, United States personnel could torture civilians—so long as they did so outside the United States—without breaching the treaty.”

In early January, three retired senior military officers—including two former Naval Judge Advocate Generals—raised similar concerns about Nielson’s record in a letter to Senator Charles Grassley (R-Iowa), chairman of the Senate Judiciary Committee. “Rather than follow where the law leads, Mr. Nielson’s 2005 OLC memo struggled to invent a space beyond the reach of the Geneva Conventions, where legal protections for detainees would not apply,” they wrote. “There is no such space.”

Nielson has also come under fire for arguing, in 2011, that a homosexual judge should not have heard a landmark case regarding the constitutionality of gay marriage. As part of the team defending California’s voter-approved 2008 ballot initiative banning gay marriage, Proposition 8, Nielson filed a motion to vacate a district court’s judge’s decision knocking down the ban, arguing that the judge may not have been impartial because he “was in a committed, long-term, same-sex relationship throughout this case (and for many years before the case commenced).”

The motion “basically said: ‘You’re gay, so you can’t be impartial,'” says Kristine Lucius, who worked at the Senate Judiciary Committee for 15 years before joining Leadership Conference on Civil Rights, a legal advocacy organization.

If confirmed by the committee, Nielson will progress to the Senate floor for a final vote. There has been no indication yet any Republicans will vote against Nielson.

Since Trump took office in January 2017, the Senate has confirmed 24 of his nominees, including one who was rated “not qualified” by the American Bar Association. Currently, 51 nominees are pending.

THE TRUTH IS...

what drives Mother Jones' team of 50-plus journalists. The truth is powerful, as evidenced by how hard those with something to hide, or profit to gain, seek to discredit it. The truth, stated boldly and reported meticulously, is what draws so many readers to Mother Jones.

And the truth is, going into the final 4 days of the year we still needed to raise $TK to hit our $350,000 goal and start 2021 on track. It's nerve-wracking, wondering if the big spike we normally see at the end of December is going to be another thing that doesn't go as planned in 2020, or worse, if, now that Donald Trump is set to leave the White House (for longer than a taxpayer-funded golf trip to a property he owns), folks might be pulling back from fighting for the truth and a democracy and think the hard work is done.

It's not, and if you can right now, please consider a year-end donation to support our team's fearless nonprofit journalism so we can close that big fundraising gap and finish the year strong, ready for all that's ahead in 2021. Whether you can give $5 or $500, it all matters in keeping us charging hard, and we'd be grateful.

payment methods

THE TRUTH IS...

what drives Mother Jones' team of 50-plus journalists. The truth is powerful, as evidenced by how hard those with something to hide, or profit to gain, seek to discredit it. The truth, stated boldly and reported meticulously, is what draws so many readers to Mother Jones.

And the truth is, going into the final 4 days of the year we still needed to raise $TK to hit our $350,000 goal and start 2021 on track. It's nerve-wracking, wondering if the big spike we normally see at the end of December is going to be another thing that doesn't go as planned in 2020, or worse, if, now that Donald Trump is set to leave the White House (for longer than a taxpayer-funded golf trip to a property he owns), folks might be pulling back from fighting for the truth and a democracy and think the hard work is done.

It's not, and if you can right now, please consider a year-end donation to support our team's fearless nonprofit journalism so we can close that big fundraising gap and finish the year strong, ready for all that's ahead in 2021. Whether you can give $5 or $500, it all matters in keeping us charging hard, and we'd be grateful.

payment methods

We Recommend

Latest

Sign up for our free newsletter

Subscribe to the Mother Jones Daily to have our top stories delivered directly to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate