Two Republicans claimed during the second day of confirmation hearings on Tuesday that Judge Ketanji Brown Jackson called former Secretary of Defense Donald H. Rumsfeld and former President George W. Bush “war criminals”. But she never used that expression. Here is the context.
what was said
Senator Lindsey Graham, Republican from South Carolina: “I was also a lawyer, but I don’t think you need to call the government a war criminal to pursue charges against a terrorist. I just think it’s too far. I don’t know why you chose those words.
Senator John Cornyn, Republican of Texas: “Why the hell would you call Secretary of Defense Rumsfeld and George W. Bush war criminals in a court filing?” It seems so out of place to you.
Judge Jackson: “Senator, you may have been – are you talking about briefs that I have… or habeas petitions that I filed?”
Mr. Cornyn: “I am talking about the time when you represented a member of the Taliban.
This is a distortion and lacks context. Judge Jackson did not specifically call the former president and secretary of defense “war criminals.” But she was one of several lawyers who in 2005 signed four essentially boilerplate habeas corpus petitions on behalf of detainees at Guantánamo Bay who claimed the US government had tortured the men and that such acts “constituted war crimes”.
For context, the 2004 Supreme Court had ruled that Guantánamo Bay detainees could sue for habeas corpus challenging the factual basis for their indefinite wartime detention — that is, whether it was true, as the government claimed, that they were both terrorists.
Many volunteer lawyers from private firms and civil liberties groups have taken on such cases. Among them was the Federal Public Defender’s Office in Washington. As a lawyer there, Judge Jackson and another colleague were assigned to help represent four inmates, and she co-signed four Phone habeas petitions on their behalf.
The petitions each name Mr. Bush and Mr. Rumsfeld – as well as two senior officers who oversaw the Guantánamo detention operation – as their official defendants. And, they said, the acts of those officials who order or condone allegations of torture and other inhumane treatment of detainees “constitute war crimes and/or crimes against humanity in violation of the law of nations under the Extraterrestrial Liability Status”.
There was a legal reason for making this claim: the alien crime The law gives courts jurisdiction to hear suits alleging violations of international law. The petitions argued that the alleged mistreatment of detainees met this standard.
Notably, these petitions followed what was essentially a pattern that pro bono attorneys across the country used in their petitions – using identical language to present legal arguments and requests for relief; other Phone briefs submitted by other attorneys in different detainee petitions contained the same paragraph.
Later in the hearing, Senator Richard Durbin, Democrat of Illinois, described some of the context in which Judge Jackson had co-signed these petitions and said that was apparently what the Republicans were referring to. . He added, “To be clear, was there ever a time when you called President Bush or Secretary Rumsfeld a, quote, war criminal, near quote?”
“No senator,” replied Judge Jackson. “Thank you. That was correct.
The four detainees Judge Jackson represented for a time were eventually repatriated – three to Afghanistan and one to Saudi Arabia. None have ever been tried or convicted of a crime.