WASHINGTON – Four men once held at the Guantanamo Bay detention center — men Judge Ketanji Brown Jackson never met — were central to some of the questions she fielded Tuesday during her Supreme Court confirmation hearing.
Jackson was asked repeatedly about the work she did over a decade ago for the men Republican lawmakers have described as terrorists and used to attack her record. Two senators alleged misleadingly that she'd called then-President George W. Bush and then-Defense Secretary Donald Rumsfeld “war criminals" in related legal filings.
The back-and-forth between the nominee and the senators was a throwback to the intense legal fights over terrorism and the lengths the government can go to keep the nation safe that erupted after the Sept. 11, 2001, attacks. Sen. Lindsey Graham, R-S.C., at one point said Tuesday that he hoped the remaining detainees “die in jail if they're going to go back and kill Americans.”
Jackson noted that she didn't choose to represent the detainees but was assigned their cases while employed as a federal public defender from 2005 to 2007. Unlike colleagues who worked on the cases, Jackson never traveled to Guantanamo Bay, Cuba, to meet the men. Instead, her role was research and writing.
“Federal public defenders do not get to pick their clients," she said. It's a “core constitutional value” that even those accused of the most heinous crimes get to be represented by a lawyer, she said.
The four men Jackson represented were alleged to have been an al-Qaida bomb expert, a Taliban intelligence officer, a man who trained to fight American forces in Afghanistan, and a farmer associated with the Taliban.
None was ever tried, much less convicted, by the military commissions that were set up to deal with the detainees. Even those who were eventually charged had those charges dropped. All were eventually released.
Jackson was also quizzed about her work writing a brief on behalf of former federal judges in a different Guantanamo-related case before the Supreme Court. In that case, her brief was in support of the detainees' position, the side that ultimately prevailed in a 5-4 Supreme Court decision. Jackson said her job was to represent the views of her clients, which was the group of federal judges.
Jackson was initially assigned Guantanamo cases as a public defender because of her experience working on appeals court cases, according to her boss at the time, A.J. Kramer. She continued work on one of the cases when she moved on to private practice, she said Tuesday, but it was because her firm was assigned to represent the man.
At the time, the Guantanamo detention center was still new. It had opened in 2002, and Jackson's assignments came after a Supreme Court decision that those held at Guantanamo had a right to challenge their detention in court, bringing a flood of litigation. At the time Jackson's brother was an Army infantryman deployed in Iraq, she has said, making her “keenly and personally mindful" of the circumstances that led to the men's detention.
In one case, Jackson's representation did not last long. Court records say she was assigned Khudai Dad's case in November 2005, but he was sent back to Afghanistan within three months. Jackson also represented Tariq Mahmoud Ahmed Al Sawah, whom the U.S. government has described as an explosives expert for al-Qaida, the terrorist group that carried out the 9/11 attacks.
Another client was Jabran al Qahtani, who traveled from his home in Saudi Arabia to train and fight against American forces and others in Afghanistan. It was the one case she continued in private practice. Another lawyer who worked on his case, John Kolakowski, has said Qahtani was “young and foolish," traveling to undertake what he thought was a religious calling. He quickly regretted his decision and then “tried to get out of Dodge,” Kolakowski said.
Jackson has written that she considers the work she did on behalf of a different detainee, Khi Ali Gul, some of her most significant as an attorney. The work Jackson did on behalf of Gul, who has been described as a Taliban intelligence officer, included writing a brief challenging his classification as an enemy combatant and his detention at Guantanamo.
Graham, who was a defense lawyer in the Air Force, said it wasn't Jackson's work as a public defender he took issue with.
“The American people deserve a system where everybody's represented, whether you like them or not. And anybody that takes up that cause, no problem with me. You're just doing your job and I think you make our country stronger,” he said.
But, Graham and Sen. John Cornyn, R-Texas, took issue with some of the words Jackson used in court documents involving Guantanamo Bay, saying she had called the government and Bush and Rumsfeld “war criminals.”
Jackson actually never referred to anyone as a war criminal, but she did allege that the treatment of the detainees constituted torture and violated federal law. The brief she helped write said the federal government, including the president and defense secretary, was ultimately responsible.
The government is still holding 39 men at Guantanamo. Most have never been charged.