WASHINGTON — President Joe Biden’s Supreme Court nominee will face sharp questions from Republican lawmakers this coming week about the work she did as a public defender representing four Guantanamo Bay detainees.
Some Republicans say Judge Ketanji Brown Jackson has a record of “defending terrorists” and they plan to raise questions about it at Senate hearings on her nomination that begin Monday. The criticism comes even as prominent Republicans have previously defended those who represented Guantanamo detainees, saying ensuring everyone access to a lawyer is a fundamental part of the American legal system.
Jackson was nominated to replace retiring Justice Stephen Breyer, and her selection fulfills a campaign promise by President Joe Biden to name the first Black woman to the Supreme Court. Democrats have the votes to confirm her even without GOP support. But three Republicans on the Senate Judiciary Committee, which is holding the hearings, are considering running for president in 2024 and are likely to use Jackson’s Guantanamo Bay work, among other issues, to try to paint her as soft on crime and terrorism.
Already, the Republican Party has branded Jackson as a “radical, left-wing activist” and suggested her representation of Guantanamo detainees was “‘zealous,’ going beyond just giving them a competent defense.”
Jackson has written that under “the ethics rules that apply to lawyers, an attorney has a duty to represent her clients zealously,” no matter their own views. That includes the men she represented, men 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 of the men, however, was ever convicted by the military commissions created to try detainees. Even those who were eventually charged had those charges dropped, and all were eventually released.
Jackson was assigned all four cases while working as a federal public defender from 2005 to 2007. She continued at least some work when she moved on to private practice. In 2010, she joined the U.S. Sentencing Commission. She became a federal judge in 2013.
Earlier this month Sen. Josh Hawley, R-Mo., said after meeting with Jackson that it was “interesting” and in his view “a little concerning” that she had continued to represent the men after going into private practice at Morrison & Foerster, a firm that also had other lawyers representing detainees. Hawley, who also praised Jackson for “substantive answers” in her meeting with him, is one of the Republicans on the committee with White House aspirations. The others are Sens. Ted Cruz of Texas and Tom Cotton of Arkansas.
A.J. Kramer, Jackson’s former boss at the public defenders’ office, confirmed that she was assigned the Guantanamo cases and had not specifically sought them out. She was chosen, he said, for her experience working on appeals court cases, a skill that helped round out the team of lawyers.
Unlike colleagues, she never went to Guantanamo to visit her clients. Her work was legal research and writing, and the assignments were not her main ones while in the office, a former colleague said.
At the time, the Guantanamo detention center was still new. Jackson’s assignments came after a 2004 Supreme Court decision that those held at Guantanamo, which had opened two years earlier, had a right to challenge their detention in court. At the time Jackson’s brother was also 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. But charges ultimately brought against him were dismissed, and he was released to Bosnia and Herzegovina in 2016.
Jackson represented Jabran al Qahtani, who traveled from his home in Saudi Arabia to train and fight against American forces and others in Afghanistan. While Republican talking points say Jackson “worked as a lawyer for several terrorists,” that’s too strong a word to use for Qahtani, according to another lawyer who worked on his case.
John Kolakowski 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. But he was in the wrong place at the wrong time, Kolakowski said. He was captured in a raid on the Pakistan home of a man then thought to be a high-ranking al-Qaida member, Abu Zubaydah. The government ultimately dropped charges against Qahtan, and he was sent back to Saudi Arabia in 2017.
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. Gul, described in documents as a Taliban intelligence officer, was also allegedly involved in the planning of an attack in which six rockets were fired at a U.S. base in Afghanistan.
Jackson has said that she represented him from 2005 to 2007, including writing a brief challenging his classification as an enemy combatant and his detention at Guantanamo. He was sent back to Afghanistan in 2014.
In a questionnaire prepared ahead of her Senate hearings, Jackson listed Gul’s case as one of the 10 most significant cases she handled as a lawyer. She also included the case twice before — when she was nominated to serve as a federal judge in the District of Columbia and then as a federal appeals court judge.
Still, her representation came up only briefly at her appeals court confirmation last year. Cotton asked her: “Have you ever represented a terrorist at Guantanamo Bay.” Yes, she said, though she couldn’t recall Gul’s name. She also answered written questions about him after the hearing.
Not all Republicans seem concerned about Jackson’s Guantanamo work. Sen. John Cornyn, R-Texas, noted after meeting with her that her role was mostly as an appellate lawyer, not working directly with the client.
Democrats have rushed to her defense. “Capable advocates willing to defend the most reviled in society, without endorsing the crime, is a pillar of our system,” members of former President Barack Obama’s administration wrote the committee.
In 2007, Charles “Cully” Stimson was a senior Pentagon official working on detainee issues when he criticized law firms for their representation of people held at Guantanamo.
Stimson soon apologized for what he called “boneheaded” remarks and resigned his position. He now works at the conservative Heritage Foundation.
“When you are advocating on behalf of anybody, including a Guantanamo person, you are required under state bar ethics rules to do so ethically and zealously,” Stimson said in a recent interview. “The fact that they may be a terrorist doesn’t take away from the fact that they are due zealous representation.”