Supreme Court nominee Ketanji Brown Jackson was criticized on Tuesday by two Republican senators at a confirmation hearing over language she claimed she had used in the past, while challenging the indefinite detention of clients detained without charges in Guantanamo Bay military prison.
GOP Senator Lindsey Graham of South Carolina claimed Jackson had gone “just too far,” he claimed, calling the government “a war criminal in prosecuting a terrorist.” Texas GOP Senator John Cornyn asked Jackson “why on earth,” while representing a Taliban member, “would you call Secretary of Defense Rumsfeld and George W. Bush war criminals in a legal case? It seems so out of character to you.”
Facts first: Both Graham and Cornyn left out important context. Specifically, none of them mentioned that Jackson’s allegation of war crimes was about torture. Jackson also did not explicitly use the term “war criminal”.
Here’s what happened.
While serving as federal defense attorney from 2005 to 2007, Jackson was assigned to the cases of four inmates at Guantanamo Bay. “” Federal public defenders can not choose their clients, “she said noted during the court hearing on Tuesday.) in habeas corpus petitions, which she filed with a colleague in 2005 on behalf of the four clients – after the Supreme Court ruled that Guantanamo detainees could contest the legality of their detentions in US federal courts – Jackson claimed the detainees had been tortured and subjected to other inhuman treatment.
Jackson and her colleague then claimed that the actions of the American “respondents” they named in their petitions – actions they described as “directing, ordering, confirming, ratifying and / or conspiring to bring about torture and other inhuman treatment” – ” constitute war crimes and / or crimes against humanity ”under the Alien Tort Statute and that they violate the Geneva Conventions.
Bush and Rumsfeld were two of the four respondents Jackson and her colleague mentioned in each of the applications, along with two commanders at Guantanamo. However, Stephen Vladeck, a law professor at the University of Texas, a legal analyst at CNN and an expert on military justice, said that since the rules for this kind of application essentially required the President and Secretary of Defense to be named as respondents – Jackson’s applications made it clear that Bush and Rumsfeld were being sued in their official capacity – “it is more than a little misleading to suggest that claims in the litigation is necessarily allegations about the named respondents personally. ”
Jackson and her colleague noted in each application that “all references” to respondents ‘actions were intended to cover actions performed by “respondents’ agents or employees, other government agents or employees or contractors.” A White House official said in an e-mail Tuesday that “Judge Jackson has never filed habeas applications calling either President Bush or Secretary Rumsfeld war criminals.”
In her response to Graham, Jackson said she did not recall accusing the government of acting as a war criminal, but that in habeas applications she had “made accusations of maintaining problems on behalf of my clients.” In response to Cornyn, she said she had put forward arguments on behalf of her clients, would have to look into what he was talking about, and “did not intend to demean the president or defense minister.”
None of Jackson’s four Guantanamo clients were ever convicted. Each of them was eventually released from Guantanamo.