Jackson’s work on Guantánamo cases comes into sharp focus during Day 2 of hearings
In a series of exchanges with senators Tuesday, Judge Ketanji Brown Jackson discussed at length her unique experience representing Guantánamo Bay detainees during the height of the post 9/11 war on terror.
It marked Jackson’s most public and thorough recounting of her Guantánamo work since President Joe Biden tapped her to succeed retiring Justice Stephen Breyer on the Supreme Court. She framed it as essential to ensuring the values of the Constitution were upheld in the wake of the horrific terror attack.
Jackson served as a federal public defender in Washington, D.C., from 2005 to 2007. Her service followed the Supreme Court’s 2004 Rasul v. Bush decision, which determined that foreign nationals held at the prison on the U.S. Navy base in Guantánamo Bay, Cuba, had the right to petition federal courts for writs of habeas corpus to determine the legality of their continued detention.
Jackson entered the Federal Public Defender’s Office as cases began to roll in the year after the court’s decision. She and her colleagues entered this murky legal territory of the early Guantánamo cases as the courts had to weigh the rights of men accused of being enemy combatants in Afghanistan.
“After 9/11 there were also lawyers who recognized that our nation’s values were under attack, that we couldn’t let the terrorists win by changing who we were fundamentally,” Jackson told the Senate Judiciary Committee.
“And what that meant was that the people who were being accused by our government of having engaged in actions related to this under our constitutional scheme were entitled to representation, were entitled to be treated fairly. That’s what makes our system the best in the world.”
The detainees Jackson represented
Jackson was assigned to the office’s appellate division and partnered with a trial court attorney on behalf of the detainees who qualified as indigent for representation by the office.
“I never traveled there or anything like that. I worked on the law. And as you know the law was very uncertain,” Jackson told Sen. Patrick Leahy, D-Vermont, the Senate’s president pro tempore.
Jackson testified that when she moved into private practice work at the international law firm Morrison & Foerster in 2007, the firm had taken on a case of one of the detainees who she had represented and, she was again assigned to the case. She said she didn’t know the firm had agreed to represent the detainee.
Jackson didn’t specify the case during the exchange with Leahy, but the Senate Judiciary Committee staff confirmed to the Herald that she was referring to the case of Jobran Saad Al-Qhtani.
The Bush administration alleged that Al-Qhtani had traveled from Saudi Arabia to Afghanistan following the Sept. 11 attack to join al Qaeda. He was detained by the U.S. after a raid on a Pakistani safe house in 2002. Jackson was part of a team of federal public defenders who filed an amended habeas corpus petition on his behalf in 2005.
Morrison & Foerster took over his defense in 2006 on behalf of the nonprofit Center for Constitutional Rights before Jackson joined the firm. In total, she worked 19 billable hours on the case for the firm from 2007 to 2009 but never filed an appearance in the case for the firm. Al-Qhtani was released to Saudi Arabia in 2017, eight years after Jackson’s role in the case concluded.
The other detainees she represented as a federal public defender include Khudai Dad, who was detained in 2005 and released to Afghanistan by early 2006 before the litigation moved forward.
She also represented Khi Ali Gul and Tariq Mahmoud Alsawam, alleged enemy combatants who were respectively released from Guantanamo in 2014 and 2016 several years after Jackson left the Federal Public Defender’s Office.
“And those cases started coming in. And federal public defenders don’t get to pick their clients. They have to represent whoever comes in and it’s a service. That’s what you do as a federal public defender and you are standing up for the constitutional value of representation,” Jackson told Sen. Dick Durbin, D-Ill., the committee’s chairman and the No. 2 Democrat in the Senate.
Graham grills Jackson, spars with Durbin
Sen. Lindsey Graham, R-S.C., who noted his own background representing defendants in military court, said he took no issue with Jackson’s public defense work on behalf of the Guantánamo detainees. But he grilled her about her work as a private practice attorney.
At Morrison & Foerster, Jackson worked on amicus briefs on behalf of former federal judges and libertarian-leaning nonprofits, such as the Cato Institute, the Rutherford Institute and the Constitution Project, that challenged the government’s power to hold detainees indefinitely. Graham and Jackson had a tense exchange about her role in these briefs.
“Respectfully, Senator, it was not my argument. I was filing an amicus brief on behalf of clients,” Jackson told Graham, pushing back on his characterization of the briefs’ argument as her own.
The judge’s answer did not satisfy the South Carolina Republican who grilled Jackson on why she would sign onto the brief.
“If the court had taken the position included in the brief that you signed onto we would have to release these people or try them. And some of them the evidence we can’t disclose because it’s classified. You’re putting America in an untenable position,” Graham said. “This is not the way you fight a war. If you tried to do this in World War II, they’d run you out of town. We’d hold enemy combatants as long as they’re a threat. There’s no magic passage of time that you got to let them go.”
Graham was one of three Republicans who supported Jackson’s confirmation to the U.S. Court of Appeals for the D.C. Circuit last year, but the contentious exchange highlights the difficulty that Jackson could have in attracting the same bipartisan support under the bigger microscope of a Supreme Court confirmation process.
Sen. John Cornyn, R-Texas, accused Jackson of using the phrase “war criminal” to describe former President George W. Bush and former Secretary of Defense Donald Rumsfeld in the course of her work on Guantánamo.
Durbin’s staff said in an email Tuesday afternoon that this was a misrepresentation of Jackson’s case work. The email said that the habeas petitions filed by Jackson and other federal public defenders alleged that the federal government had sanctioned torture against detainees, a war crime under the Alien Tort Statute, which the U.S. first adopted in 1789.
“Apparently, this is what Senator Cornyn was referencing. So, to be clear, Judge Jackson did not call President Bush or Secretary Rumsfeld a ‘war criminal,’ ” the email from the Democratic Senate Judiciary Committee staffer said.
Sen. Alex Padilla, D-Calif., said he thought Jackson handled the scrutiny of her Guantánamo work well.
“I thought she was spot on. She was graceful, clear. And if there’s any issue with her experience or service as a defense attorney, it’s not an issue with her: It’s an issue with the Constitution. The right to counsel is important to our democracy and a perspective that’s been lacking,” Padilla told McClatchy.
Graham’s testy back-and-forth with Jackson was followed by an even more aggressive verbal sparring session with Durbin, who followed Graham’s questions with a series of statistics meant to contextualize and push back on Graham’s line of questioning. Durbin said only 39 detainees remain in Guantánamo at an annual budget of $540 million a year.
“We’re at war. We’re not fighting a crime,” Graham fumed in response. “This is not some passage of time event. As long as they’re dangerous, I hope they all die in jail if they’re going to go back and kill Americans. It won’t bother me one bit if 39 of them die in prison. That’s a better outcome than letting them go.”
McClatchy’s Gillian Brassil contributed to this report.
This story was originally published March 22, 2022 at 1:25 PM with the headline "Jackson’s work on Guantánamo cases comes into sharp focus during Day 2 of hearings."
