Senate confirmation hearings for Supreme Court nominee Ketanji Brown Jackson are set to begin Monday, and Republicans are already signaling plans to attack him for providing legal representation to those imprisoned at Guantánamo Bay. In doing so, lawmakers reveal their belief that some people do not deserve a quality legal defense, undermining a key pillar of the US justice system.
The GOP admits that in his role as a public defender in Washington, DC, Jackson did not choose his clients, but nevertheless accuses him of being too enthusiastic in their defense. “Jackson’s plea for these terrorists was ‘zealous,’ going beyond giving them a competent defense”, the Republican National Committee says on his website in a teardown of Jackson.
The implication is that Jackson shouldn’t have put so much effort into her job because of who she was representing: dark-haired men from predominantly Muslim countries being held without charge in an offshore detention center. The DC Bar Rules of Professional Conduct explicitly require attorneys to represent their clients “with zeal and diligence.” Even if every person detained at Guantánamo Bay had committed acts of terrorism, they would be entitled to vigorous representation.
“This concept is fundamentally American, going back to John Adams’ depiction of British soldiers after the Boston massacre,” said Alka Pradhan, a human rights lawyer who has represented several people imprisoned at Guantánamo Bay.
Perhaps aware of the flawed logic of attacking a public defender for competently representing his subpoenaed clients, some Republican lawmakers are focusing their criticism on Jackson’s decision to continue his work at Guantánamo after leaving the public defender’s office and being became a private lawyer.
“She has volunteered to continue this representation in private practice, which I think is interesting,” noted Sen. Josh Hawley (R-Mo.). “And frankly, from my point of view, a little worrying.”
(Hawley’s views on law and order seem somewhat confused. greeted the rioters which stormed the US Capitol on January 6, 2021 and recently began sale a cup of coffee representing this greeting.)
Sen. John Cornyn (R-Texas.) told reporters he was “curious” how Jackson ended up on Guantánamo cases and said “it might make a difference to me whether it’s whatever something she was looking for.
Lawyers often choose to represent people who have done horrible things in order to uphold a fundamental principle of due process and to ensure that the government always adheres to it. Moreover, the idea that every person detained at Guantánamo Bay has done something wrong is patently false. Of the approximately 780 people held there over the years, nearly all have been deemed safe to release and very few have been charged with a crime.
In the spring of 2002, Major General Michael Dunlavey, then operational commander of Guantánamo Bay, traveled to Afghanistan to to complain that too many “Mickey Mouse” inmates were being sent to the offshore prison. Even President George W. Bush knew most Guantánamo detainees shouldn’t have been there, a senior Bush administration official said. written in a 2010 court statement.
By August 2002, it was clear “that many prisoners held at Guantánamo had been taken into custody without regard to whether they were really enemy combatants, or indeed whether many of them were enemies at all. wrote Lawrence Wilkerson, former chief of staff at Colin Powell, in the 2010 court filing. Adding to the problem, Wilkerson writes, is that many Guantanamo detainees ended up in US custody after being was given in exchange for bonuses, sometimes up to $5,000 per person.
“In numerous habeas corpus cases, we have proven time and time again that the United States pays bounties for Guantánamo Bay detainees to partners in Pakistan,” Pradhan said. “The defense at Guantánamo Bay is not only necessary because everyone deserves a lawyer, but it underscores the fact that if we did not have representation from these people, many of these mistakes would not have been discovered, which fundamentally undermines the entire judicial system. ”
As a public defender, Jackson represented an Afghan national named Khi Ali Gul, who was detained without charge and confined to his cell 23 hours a day. Gül has noted that he really fought with US forces in Tora Bora, Afghanistan, and that he was wrongfully detained. It was released from Guantánamo in 2014, after almost 12 years of detention — and several years after an Obama administration task force determined that it was safe to release him. There is no evidence that he has engaged in terrorism since. In a Senate Judiciary Committee questionnaire, Jackson ranked Gul’s defense as one of the 10 most important cases she has handled.
As a private attorney, Jackson has co-authored two amicus briefs for Guantanamo cases. One, filed on behalf of the Cato Institute, the Constitution Project and the Rutherford Institute, argued that the executive branch of the United States government did not have the power to detain indefinitely without charge persons who were lawfully in the United States. The second was deposit on behalf of 20 former federal judges in support of petitioners in Boumediene c. Busha landmark Supreme Court ruling that those held at Guantánamo as enemy combatants had the right to challenge their detention in federal court.
Boumediene c. Bush “reaffirmed this concept of habeas corpus,” Pradhan said. “The idea that anyone – be it the perpetrators of January 6 or the Proud Boys and protesting black Americans – would not be able to challenge the basis of their detention is contrary to American history and values.”
But Republicans nonetheless plan to make that legal work a major issue in Jackson’s hearings.
“I think you will learn more about his representation at Guantánamo Bay,” Cornyn noted this week.