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Justice Gorsuch's Guantanamo Recusal Explained (Maybe)

Last week, Fix the Court released its annual recusal report, which explains the reasons behind the 200 times the justices have thus far in OT17 disqualified themselves from hearing cases or voting on cert. petitions.

Of the 200 recusals, we couldn’t figure out the reasons behind four of them, but we think we have a clue on at least one thanks to an anonymous tipster, who gave us some good insight into Justice Gorsuch’s recusal practices.

You may recall from the report that Gorsuch recused himself from cert. determination in Al Bahlul v. U.S. but not Al-Nashiri v. U.S, both cases related to Guantanamo detainees and the charged they’re facing before military tribunals.

The tipster said it’s his guess that Gorsuch is more likely to have had contact with the al Bahlul case than the al-Nashiri case. Al Bahlul was charged in 2004, and his charges were impacted by Hamdan v. Rumsfeld, a 2006 Supreme Court case the Justice Department weighed in on (Gorsuch worked at DOJ 2005 to 2006). In the end, al Bahlul was convicted under the MCA in 2008.

The al-Nashiri charges, on the other hand, weren’t filed until 2008, almost two years after Gorsuch left DOJ. During the time Gorsuch was at the agency, al-Nashiri was most likely in CIA custody.

If you have thoughts as to why the other three explained Supreme Court recusals happened, please let us know at

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