Republicans skew facts to pick on Ketanji Brown Jackson’s use of words

Two Republican senators chastised Supreme Court nominee Ketanji Brown Jackson on Tuesday for allegedly using words in the past when contesting the indefinite detention of clients held without charge at the Guantanamo Bay military prison.

South Carolina Republican Sen. Lindsey Graham stated Jackson had gone “just too far,” labelling the government a “war criminal” for seeking charges against a terrorist. Texas Republican Sen. John Cornyn asked Jackson, “Why in the world,” when representing a Taliban member, “would you call Secretary of Defense Rumsfeld and George W. Bush war criminals in a legal filing? It seems so out of character for you.”

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Graham and Cornyn both left out critical context. Specifically, neither mentioned Jackson’s claim of war crimes involving torture. In addition, Jackson did not use the phrase “war criminal” expressly.

Here’s what actually happened:

From 2005 to 2007, Jackson worked as a federal public defender, handling the cases of four inmates at Guantanamo Bay. (“Federal public defenders don’t get to pick their clients,” she pointed out during Tuesday’s hearing.) Jackson argued that the detainees had been tortured and subjected to other inhumane treatment in habeas corpus petitions she filed with a colleague on behalf of the four clients in 2005, after the Supreme Court ruled that Guantanamo detainees could contest the legality of their detention in US federal courts.  

Jackson and her colleague then contended that the acts of the US “respondents” named in their petitions – acts described as “directing, ordering, confirming, ratifying, and/or conspiring to bring about the torture and other inhumane treatment” – “constitute war crimes and/or crimes against humanity” under the Alien Tort Statute and violate the Geneva Conventions.

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Bush and Rumsfeld were two of the four respondents mentioned by Jackson and her colleague in each of the files, along with two Guantanamo commanders. However, Stephen Vladeck, a University of Texas law professor, CNN legal analyst, and expert on military justice, stated that because the rules for these types of filings essentially required the President and Secretary of Defense to be named as respondents — Jackson’s filings made clear Bush and Rumsfeld were being sued in their official capacity — “it’s more than a little misleading to suggest that claims in that lawsuit are necessarily claims about the named respondents personally.”

In each document, Jackson and her colleague stated that “all references” to respondents’ acts were intended to cover actions conducted by “respondents’ agents or employees, other government agents or employees or contractor employees.” In an email on Tuesday, a White House spokesman stated, “Judge Jackson never filed habeas petitions that called either President Bush or Secretary Rumsfeld war criminals.”

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In her response to Graham, Jackson stated that she did not recall accusing the government of being a war criminal, but that she was “making allegations to preserve issues on behalf of my clients” in habeas petitions. In response to Cornyn, she stated that she was arguing on behalf of her clients, that she would have to check into the facts of what he was saying, and that she “did not intend to disparage the President or the Secretary of Defense.”

Jackson’s four Guantanamo detainees were never convicted. They were all finally liberated from Guantanamo.