You could perhaps forgive her for being a little surprised, since that skips over all kinds of nuance. But the exchanges brought into the open an emerging argument on the right: that lawyers, even public defenders, shouldn’t represent certain clients in specific ways — or perhaps even represent them at all.
The exchanges came around noon on Tuesday. Both Sens. Lindsey O. Graham (R-S.C.) and John Cornyn (R-Tex.) asked Jackson about a filing that said the Bush administration had committed war crimes. Cornyn suggested this was out of character from what he knew about Jackson.
“Why in the world would you call Secretary of Defense Rumsfeld and George W. Bush war criminals in a legal filing?” Cornyn asked.
Jackson paused and appeared confused: “Senator, are you talking about briefs that I — or habeas [corpus] petitions that I filed?”
Cornyn re-upped the charge, noting that it came in the context of defending a member of the Taliban.
“Well, senator, I don’t remember that particular reference,” Jackson said, “and I was representing my clients and making arguments. I’d have to take a look at what you meant. I did not intend to disparage the president or the secretary of defense.”
Certainly, it would be difficult to call someone a war criminal without intending to disparage them. But it’s worth going over what this is about.
The legal filing at issue was indeed a habeas corpus petition for a Guantánamo Bay detainee, Khi Ali Gul. Jackson also filed petitions with similar language in two other cases. It’s not clear which Cornyn meant to refer to, but that first case is the main one that is often cited.
The petitions alleged that the detainees had been tortured in captivity and named Bush and Rumsfeld as respondents.
“By the actions described above, Respondents’ acts directing, ordering, confirming, ratifying, and/or conspiring to bring about the torture and other inhumane treatment of Petitioner Khiali-Gul constitute war crimes and/or crimes against humanity in violation of the law of nations under the Alien Tort Statute” and the Geneva Conventions, states the Gul petition.
So Bush and Rumsfeld are respondents, and the filing says the “Respondents’ acts … constitute war crimes.” Ipso facto, the filing accused them of war crimes — and, it would seem to follow, of being war criminals.
One key thing to note, as law professor Steve Vladeck does, is that Bush and Rumsfeld are named in the petitions because they have to be, to clear procedural hurdles. (Indeed, these petitions later named Barack Obama after the administration changed.) Another is that they are named in their official capacities, not because of actions they took in these individual cases.
Finally, and oh by the way, the *reason* why #GTMO habeas petitions *have* to name the President and Secretary of Defense, versus naming the government generally, is because of #SCOTUS's sovereign immunity jurisprudence and the "officer suits" exception it has carved into it.
— Steve Vladeck (@steve_vladeck) March 22, 2022
Senate Judiciary Committee Chairman Richard J. Durbin (D-Ill.) later followed up on this issue, saying, “To be clear, there was no time where you called President Bush or Secretary Rumsfeld a, quote, ‘war criminal’ ” — apparently objecting to the implication Jackson had so directly applied that label. Jackson agreed with Durbin’s characterization.
But the larger point is that Jackson was acting as the detainees’ lawyer — and in her role as a public defender. And one of the underpinnings of the American justice system is that even the most reviled alleged criminals have the right to a vigorous defense.
This drove home something Republicans have danced around, dating back to Jackson’s previous confirmation processes. Knowing her history, Sen. Charles E. Grassley (R-Iowa) in a 2012 hearing asked her whether she thought “that terrorists pose a danger to America” and that the United States was engaged in a war on terror. Last year, as she was being confirmed to the D.C. Circuit Court of Appeals, Cornyn asked her whether she had represented a terrorist, and Jackson confirmed that she had. Sen. Ben Sasse (R-Neb.) asked her whether she considered resigning from the Gul case and whether she worried her work “would result in him returning to his terrorist activities.”
Even as they walked down those paths, though, Republicans didn’t really drive home the idea that her representation was in itself wrong. That’s probably because they’re lawyers who understand the principles involved.
Indeed, Graham told Jackson, “You know, I’ve been a lawyer too, but I don’t think it’s necessary to call the government a war criminal in pursuing charges against a terrorist. I just think that’s too far.”
(The issue was not the government pursuing charges, of course, but the conditions in which it kept detainees. And there are plenty who disagree with those conditions, regardless of the detainees’ actions.)
The suggestion is apparently that she should have stopped short of accusing the Bush administration of war crimes, even if her clients wanted it. But Vladeck said the filings quite literally needed to do so, to have a chance at the petitions succeeding — even as Cornyn pitched this as gratuitous name-calling.
This is merely the latest example of a lawyer’s clients being used as political leverage — and you needn’t look far in the past for others.
The language of those questions is familiar. But, again, is the argument that lawyers should refuse to represent such people — even as public defenders? If so, we should probably have a conversation about what the standards should be, what cases public defenders should refuse or what they should refuse to do in their representation of their clients.
Of course, it’s much easier to use these cases to lead people to conclusions that, at best, the nominees hate the other party’s leaders or are soft on crime — or, at worst, that they sympathize with the awful people they represented.
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