Ketanji Brown Jackson’s confirmation hearing Day 2

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Sen. John Cornyn watches as Sen. Lindsey Graham questions Supreme Court nominee Judge Ketanji Brown Jackson during her confirmation hearing on Tuesday. (Win McNamee/Getty Images)

Supreme Court nominee Ketanji Brown Jackson was criticized by two Republican senators on Tuesday over language they claimed she had used in the past while challenging the indefinite detention of clients who were being held without charges at the Guantanamo Bay military prison.

GOP Sen. Lindsey Graham of South Carolina alleged that Jackson had gone “just too far” in, he claimed, calling the government “a war criminal in pursuing charges against a terrorist.” GOP Sen. John Cornyn of Texas asked Jackson “why in the world,” while representing a member of the Taliban, “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.”

Facts First: Both Graham and Cornyn left out important context. Specifically, neither mentioned that Jackson’s allegation of war crimes was about torture. Also, Jackson didn’t explicitly use the phrase “war criminal.”

Here’s what happened.

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

Jackson and her colleague then argued that the acts of the US “respondents” they named in their petitions – acts they 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 that they violate the Geneva Conventions.

Bush and Rumsfeld were two of the four respondents Jackson and her colleague named in each of the filings, along with two commanders at Guantanamo. However, Stephen Vladeck, a University of Texas law professor, CNN legal analyst and expert on military justice, said that since the rules for these kinds 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.” 

Jackson and her colleague noted in each filing that “all references” to the actions of respondents were meant to cover actions performed by “respondents’ agents or employees, other government agents or employees or contractor employees.” A White House official said in an email on Tuesday that “Judge Jackson never filed habeas petitions that called either President Bush or Secretary Rumsfeld war criminals.”  

In her response to Graham, Jackson said she didn’t remember accusing the government of acting as a war criminal but that, in habeas petitions, she was “making allegations to preserve issues on behalf of my clients.” In response to Cornyn, she said she was making arguments on behalf of her clients, would have to take a look at the specifics of what he was talking about, and “did not intend to disparage the President or the Secretary of Defense.”

None of Jackson’s four Guantanamo clients was ever convicted. Each of them was eventually released from Guantanamo.