Ketanji Brown Jackson, President Joe Biden’s Supreme Court nominee, would be the first former public defender ever confirmed to the Court. This aspect of her experience appeared to agitate Republican senators over the first two days of her confirmation hearings, as they harangued her for having once represented people detained in Guantánamo Bay. For some lawmakers charged with upholding the Constitution, advocating on behalf of clients held indefinitely in horrific conditions in an overseas military prison is apparently disqualifying.
On Tuesday, South Carolina’s Lindsey Graham attempted to portray Jackson’s advocacy as radical, pressing her for arguing that presidents should not be able to, in Graham’s words, “unilaterally detain someone indefinitely.” After briefly paying lip service to her obligations as a public defender, Graham excoriated her for continuing her advocacy after she left the federal defender’s office. “Why would you take a client that has a position like that?” he asked. “Did you feel okay in adopting that cause?”
Chillingly, Graham argued with full force for making Guantánamo a Constitution-free zone. “There are some people who are never going to be released and are going to die in Gitmo without trial, and for good reason,” he said.
Graham is hardly alone here. The day before, Tennessee’s Marsha Blackburn similarly accused Jackson of using her “time and talents to provide free legal representation to terrorists”; Texas’s John Cornyn opined that Jackson had “gone beyond the pale.” Missouri’s Josh Hawley, who has been grasping at straws to attack Jackson since Biden announced her nomination, has also taken issue with her continued representation of detainees, characterizing it as “a little concerning.”
The U.S. government responded to the September 11 attacks with an unprecedented expansion of executive war power. Yet the Supreme Court has given short shrift to the rights of people imprisoned at Guantánamo Bay, and has repeatedly deferred to the wishes of the executive branch. The justices have also demonstrated troubling levels of ignorance—or perhaps apathy—about the real-world consequences of their decisions for people whose cases have languished in federal courts for years without resolution. Jackson’s perspective as an advocate for people whom the government deems disposable is, to say the very least, overdue.
After September 11, the Bush administration began detaining people at Guantánamo Bay, a U.S. Navy base in Cuba, who it alleged were involved in terrorist activities. Calling them “the worst of the worst,” the administration classified detainees as “enemy combatants” in order to skirt human rights laws that govern the treatment of prisoners of war. Those held at Guantánamo were subject to Department of Defense-approved torture techniques included forced nudity and humiliation, prolonged stress positions, and sleep deprivation.
In 2004, after the Court affirmed the right of Guantánamo detainees to challenge their indefinite detention, the federal defender in charge of Jackson’s office assigned her to craft arguments against the president’s bid to act as prosecutor, judge, and jailer. “They involved very complex legal issues that were just being worked out and it needed someone who was incredibly bright and an incredibly good lawyer,” the then-federal defender, A.J. Kramer, told The New York Times. “We thought Ketanji was the best fit.”
One of her cases was that of Khi Ali Gul, arrested by Afghan forces at a checkpoint in 2002. Jackson argued that it was unconstitutional to hold him without charges, meaningful access to counsel, or any real way to contest the allegations against him. She also noted the severe mistreatment Gul endured, including exposure to extreme temperatures and psychological abuse. A leaked Department of Defense dossier noted that Gul did not know how to read or write—circumstances that made him even more vulnerable in detention, and in particular need of zealous representation from a lawyer like Jackson. A federal judge denied Gul’s petition, however, and the government deported him to Afghanistan in 2015.
After Jackson left the federal defender’s office, she continued her advocacy by writing a pair of amicus briefs: one brief on behalf of a group of federal judges in support of the legal rights of Guantánamo detainees, and another brief for the conservative Cato Institute arguing that the president cannot lawfully detain people in the United States without charges or trial. Both briefs were arguments for the bare minimum of due process that the Constitution requires, which the government was denying to incarcerated people at the time.
Jackson’s experience defending people detained at Guantánamo will bring valuable perspective to a Court that shows almost complete deference to the government on national security issues. Just last year, the Court heard the case of Abu Zubaydah, who was tortured at CIA blacksites in Thailand and Poland and later sent to Guantánamo. Although detainees like Zubaydah are able to file habeas petitions, their requests are rarely successful; his petition has been gathering dust in a D.C. district court for over 14 years. Yet during oral argument, the justices—many of whom had ostensibly voted to safeguard his right to habeas!—were shocked to learn this. “They don’t decide?” an incredulous Justice Stephen Breyer demanded of Zubaydah’s lawyers. “You just let him sit there?”
Alas, Breyer’s apparent concern for civil rights had dissipated by the time Breyer wrote the majority opinion in Zubaydah v. United States. In that case, Zubaydah had sought to compel a pair of former federal contractors to testify in his ongoing civil case in Poland. The Court ruled against him, though, citing the state secrets privilege, which allows the government to bar disclosure of information that, if revealed, would allegedly compromise national security. By withholding critical documents about the CIA’s blacksite in Poland, the government is effectively halting Zubaydah’s case.
Justice Neil Gorsuch dissented, joined by Justice Sonia Sotomayor. His opinion pointed out that many of facts about detention and torture practices have already been made public, making it unclear how national security would be preserved by withholding documents any further. “Ending this suit may shield the government from some further modest measure of embarrassment. But respectfully, we should not pretend it will safeguard any secret,” he wrote.
Republican smears of Jackson’s experience at Guantánamo also miss an even more fundamental point: The job of a defense lawyer is to protect their client’s fundamental rights, regardless of the crimes of which they are accused. The Constitution’s guarantee of counsel, even to those who cannot afford to pay, is not contingent on public sympathy for the defendant. “Federal public defenders don’t get to pick their clients,” she reminded senators on Tuesday. “You are standing up for the constitutional value of representation.”
As Committee Chair Dick Durbin pointed out, the Court is sure to confront questions about the rights of Guantánamo detainees again soon: 39 people remain incarcerated there, at an annual cost of more than $500 million. Human rights abuses have gone unchecked by a federal judiciary that is too afraid to push back on the word “terrorist,” and too detached from reality to understand the implications of their failures. Jackson’s confirmation would help change that.