Ketanji Brown Jackson’s Exchanges on War Crimes


Two Republicans claimed during the second day of confirmation hearings on Tuesday that Judge Ketanji Brown Jackson had called former defense secretary Donald H. Rumsfeld and former President George W. Bush “war criminals.” But she never used that phrase. Here is the context.

What Was Said

Senator Lindsey Graham, Republican of South Carolina: “I’ve been a lawyer, too, but I don’t think it’s necessary to call the government a war criminal in pursuing charges against a terrorist. I just think that’s too far. I don’t know why you chose those words.”

**

Senator John Cornyn, Republican of Texas: “Why in the world 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.”

Judge Jackson: “Senator, you may have been — are you talking about briefs that I … or habeas petitions that I filed?”

Mr. Cornyn: “I’m talking about when you were representing a member of the Taliban.”

This is a distortion and lacks context. Judge Jackson did not specifically call the former president and defense secretary “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 that claimed the United States government had tortured the men and that such acts “constitute war crimes.”

For context, the Supreme Court in 2004 had ruled that Guantánamo Bay detainees could bring habeas corpus lawsuits challenging the factual basis for their indefinite wartime detention — that is, whether it was true, as the government claimed, that they were each terrorists.

Many volunteer lawyers from private firms and civil liberties groups took on such cases. Among them was the office of the federal public defender in Washington. As a lawyer there, Judge Jackson and another colleague were assigned to help represent four detainees, and she co-signed four such habeas petitions on their behalf.

The petitions each named Mr. Bush and Mr. Rumsfeld — along with two senior military officers who oversaw the Guantánamo detention operation — in their official capacities as respondents. And, they said, such officials’ acts in ordering or condoning the alleged torture and other inhumane treatment of the detainees “constitute war crimes and/or crimes against humanity in violation of the law of nations under the Alien Tort Statute.”

There was a legal reason to make that claim: The Alien Tort law gives courts jurisdiction to hear lawsuits claiming violations of international law. The petitions argued that the supposed mistreatment of the detainees met that standard.

Notably, these petitions followed what was essentially a template that volunteer lawyers across the country were using in their petitions — using identical language to make legal arguments and claims for relief; other such briefs submitted by other lawyers 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 those petitions and said that was apparently what the Republicans were referring to. He added, “To be clear, there was no time where you called President Bush or Secretary Rumsfeld a, quote, war criminal, close quote?”

“No senator,” Judge Jackson replied. “Thank you. That was correct.”

All four of the detainees Judge Jackson represented for a time were eventually repatriated — three to Afghanistan and one to Saudi Arabia. None were ever tried or convicted of any crime.



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