Senate confirmation hearings for Supreme Court nominee Ketanji Brown Jackson are set to begin Monday, and Republicans are already signaling their plan to attack her for providing legal representation to people imprisoned at GuantÃ¡namo Bay. In doing so, lawmakers are revealing a belief that certain people donâ€™t deserve a quality legal defense â€” undermining a key pillar of the U.S. judicial system.
The GOP concedes that in her role as a Washington, D.C., public defender, Jackson did not choose her clients, but nonetheless accuses her of being too enthusiastic in their defense. â€œJacksonâ€™s advocacy for these terrorists was â€™zealous,â€™ going beyond just giving them a competent defense,â€ the Republican National Committee says on its website in a takedown of Jackson.
The implication is that Jackson should not have tried as hard at her job because of who she was representing: brown men from predominantly Muslim countries held without charge in an offshore detention facility. The D.C. barâ€™s rules of professional conduct explicitly instruct lawyers to represent their clients â€œzealously and diligently.â€ Even if every person held at GuantÃ¡namo Bay had committed acts of terrorism, they would be entitled to vigorous representation.
â€œThat concept is fundamentally American, going back to John Adamsâ€™ representation of the British soldiers after the Boston Massacre,â€ said Alka Pradhan, a human rights lawyer who has represented several people imprisoned at GuantÃ¡namo Bay.
Perhaps aware of the flawed logic of attacking a public defender for capably representing her assigned clients, some Republican lawmakers are focusing their criticism on Jacksonâ€™s decision to continue her GuantÃ¡namo work after she left the public defenderâ€™s office and became a private attorney.
â€œShe volunteered to continue that representation in private practice, which I think is interesting,â€ said Sen. Josh Hawley (R-Mo.). â€œAnd frankly, from my point of view, a little concerning.â€
Sen. John Cornyn (R-Texas.) told reporters that he was â€œcuriousâ€ how Jackson ended up on GuantÃ¡namo cases and said â€œit might make a difference to me whether it was something she sought out.â€
Lawyers often choose to represent people who have done horrible things in order to uphold a basic principle of due process, and to ensure that the government always adheres to it. Further, the idea that every person detained at GuantÃ¡namo Bay had done something wrong is patently false. Of the nearly 780 people detained 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, Maj. Gen. Michael Dunlavey, then the operational commander of GuantÃ¡namo Bay, traveled to Afghanistan to complain that too many â€œMickey Mouseâ€ detainees were being sent to the offshore prison. Even President George W. Bush knew that most of the GuantÃ¡namo detainees should not have been there, a senior Bush administration aide wrote in a 2010 court declaration.
By August 2002, it was apparent â€œthat many of the prisoners detained at GuantÃ¡namo had been taken into custody without regard to whether they were truly enemy combatants, or in fact whether many of them were enemies at all,â€ wrote Lawrence Wilkerson, former chief of staff to Colin Powell, in the 2010 court filing. Adding to the problem, Wilkerson wrote, was that many GuantÃ¡namo detainees ended up in U.S. custody after being turned over in exchange for bounties, sometimes as much as $5,000 per person.
â€œIn numerous habeas corpus cases, we have proven over and over and over again that the U.S. paid bounties for detainees at GuantÃ¡namo Bay to partners in Pakistan,â€ Pradhan said. â€œDefense at GuantÃ¡namo Bay is not only necessary because everyone deserves a lawyer, but it underscores the fact that if we did not have representation of these people, a lot of these mistakes would not have been discovered, which fundamentally undermines the entire justice system.â€
As a public defender, Jackson represented an Afghan national named Khi Ali Gul, who was detained without charge and confined to his cell for 23 hours a day. Gul has said that he actually fought with U.S. forces in Tora Bora, Afghanistan, and that he was wrongfully detained. He was freed from GuantÃ¡namo in 2014, after nearly 12 years of detention â€” and several years after an Obama administration task force determined him safe to release. There is no evidence that he has engaged in terrorism since. In a Senate Judiciary Committee questionnaire, Jackson listed Gulâ€™s defense as one of the 10 most significant cases she has handled.
As a private lawyer, Jackson co-wrote two amicus briefs for Guantanamo cases. One, filed on behalf of the Cato Institute, the Constitution Project and the Rutherford Institute, argued that the U.S. governmentâ€™s executive branch did not have the authority to indefinitely detain without charge people who were lawfully in the U.S. The second was filed on behalf of 20 former federal judges in support of the petitioners in Boumediene v. Bush, a landmark Supreme Court ruling that people held at GuantÃ¡namo as enemy combatants had the right to challenge their detention in federal court.
Boumediene v. Bush â€œreaffirmed this concept of habeas corpus,â€ Pradhan said. â€œThe idea that anyone â€” whether the Jan. 6 perpetrators or the Proud Boys and Black Americans who protest â€” would not be able to challenge the basis of their detention is contrary to U.S. history and U.S. values.â€
But Republicans nevertheless plan to make a major issue of this legal work at Jacksonâ€™s hearings.
â€œI think youâ€™ll hear more about her GuantÃ¡namo Bay representation,â€ Cornyn said this week.