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Ketanji Brown Jackson: I Was Standing Up for the Constitution by Representing Guantánamo Prisoners

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To begin our coverage of day two of the historic nomination hearings for Supreme Court nominee Ketanji Brown Jackson, we discuss the attacks by Republicans on her work defending suspects at Guantánamo Bay prison. Given that Jackson was one of hundreds of legal professionals in a project that exposed the lies and brutality undergirding Guantánamo, “to criticize her work in that project is nonsensical to me,” says Baher Azmy, legal director of the Center for Constitutional Rights, who has represented people held at Guantánamo and defended their rights. “Her work should be valorized.”

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: President Biden’s Supreme Court nominee Ketanji Brown Jackson faced a marathon day of questions from members of the Senate Judiciary Committee Tuesday. She’s set to make history if she becomes the first Black woman and first public defender to serve on the nation’s highest court. Judge Jackson faced a variety of attacks from Republican senators. We’re going to begin by looking at the focus on her work as a federal public defender who represented people detained at Guantánamo. This is Judge Jackson talking about representing Guantánamo prisoners.

JUDGE KETANJI BROWN JACKSON: After 9/11, there were also lawyers who recognized that our nation’s values were under attack, that we couldn’t let the terrorists win by changing who we were fundamentally. And what that meant was that the people who were being accused by our government of having engaged in actions related to this, under our constitutional scheme, were entitled to representation, were entitled to be treated fairly. That’s what makes our system the best in the world. That’s what makes us exemplary.

I was in the Federal Public Defender’s Office when the Supreme Court — excuse me, right after the Supreme Court decided that individuals who were detained at Guantánamo Bay by the president could seek review of their detention. And those cases started coming in. And federal public defenders don’t get to pick their clients; they have to represent whoever comes in, and it’s a service. That’s what you do as a federal public defender: You are standing up for the constitutional value of representation.

AMY GOODMAN: Judge Ketanji Brown Jackson was later grilled by Republican Senator Lindsey Graham about her time representing people detained at Guantánamo. This is part of their exchange.

SEN. LINDSEY GRAHAM: So, as you rightfully are proud of your service as a public defender, and you represented Gitmo detainees, which is part of our system, I want you to understand, and the nation to understand, what’s been happening at Gitmo. What’s the recidivism rate at Gitmo?

JUDGE KETANJI BROWN JACKSON: Senator, I’m not aware.

SEN. LINDSEY GRAHAM: It’s 31%. How does that strike you?


SEN. LINDSEY GRAHAM: Is that high, low, about right?

JUDGE KETANJI BROWN JACKSON: I don’t know how it strikes me overall.

SEN. LINDSEY GRAHAM: You know how it strikes me? It strikes me as terrible.

JUDGE KETANJI BROWN JACKSON: Yes, that’s what I was going to say.

SEN. LINDSEY GRAHAM: OK, good. We found common ground. Of the 229 detainees released from Gitmo — of 729 released, 229 have gone back to the fight. … Would you say that our system in terms of releasing people needs to be relooked at?

JUDGE KETANJI BROWN JACKSON: Senator, what I’d say is that that’s not a job for the courts in this way, that —

SEN. LINDSEY GRAHAM: As an American, does that bother you?

JUDGE KETANJI BROWN JACKSON: Well, obviously, Senator, any repeated criminal behavior or repeated attacks, acts of war bother me as an American.

SEN. LINDSEY GRAHAM: Yeah, well, it bothers me.

AMY GOODMAN: After this exchange, Republican Senator John Cornyn used his time to try to accuse Judge Jackson of calling former President George W. Bush and former Defense Secretary Donald Rumsfeld war criminals in a court filing.

SEN. JOHN CORNYN: Talking about when you were representing a member of the Taliban, and the Department of Defense identified him as an intelligence officer for the Taliban, and you referred to the secretary of defense and the sitting president of the United States as war criminals. Why would you do something like that? It seems so out of character.

JUDGE KETANJI BROWN JACKSON: Well, Senator, I don’t remember that particular reference in — 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.

AMY GOODMAN: In a minute, we’ll look at other topics raised in Tuesday’s confirmation hearings for President Biden’s Supreme Court nominee, Ketanji Brown Jackson, like sentencing in child pornography cases, issues of abortion and other issues, but we’re going to begin with these points on Guantánamo as we’re joined by Baher Azmy — he’s legal director of the Center of Constitutional Rights, where for the past two decades he’s been part of the legal team challenging the U.S. government over the rights of Guantánamo detainees — and Alexis Hoag, who’s a professor of law at Brooklyn Law School and a former federal public defender. And we’re going to talk about the significance of Ketanji Brown Jackson being a former public defender.

But we’re going to start with Baher Azmy on the content of the accusations. Can you talk about the judge’s record on these Guantánamo cases and the allegations made by both Cornyn and Lindsey Graham?

BAHER AZMY: Sure. Thank you, Amy.

So, Judge Jackson was one of many hundreds of lawyers who joined a project to challenge this remarkable authoritarian experiment in Guantánamo that purported to — that actually held exclusively Muslim prisoners in an island, without any protections of law, where they were subject to persistent torture and arbitrary detention based on the executive say-so. So, to sort of criticize her work in that project is nonsensical to me. She’s operating in the highest traditions of the law. And it’s lawyers in the legal project that exposed so many of the underlying lies in Guantánamo, lies about dangerousness, lies about humane treatment, lies about national security and compliance with law. So, her work should be valorized.

You know, in terms of — you know, Lindsey Graham is, like, living in a post-9/11 fever dream where he continually wants to fight these old battles. The 31% recidivism number is this made-up Soviet-style number designed to mask, again, fundamental lies about Guantánamo. The overwhelming majority have absolutely nothing to do with initiating any fighting, let alone returning to the battlefield. And, you know, it’s just sort of perpetuating this mythology that men there were dangerous. In our overwhelming experience, men who left Guantánamo left as the project was designed to do: left them broken, not angry.

JUAN GONZÁLEZ: And, Baher, I’d like to follow up on that, on this whole issue of the recidivism rate Lindsey Graham mentioned. First of all, as you allude to, most of the people in Guantánamo had never been — or, none had been convicted, or very few were actually convicted of a crime, so that even the issue of recidivism, when a person has not been convicted, is suspect. But also, even if you take Lindsey Graham’s number of 31%, I looked up what the recidivism rate is in the United States for prisoners in general, and two-thirds of people who serve in U.S. prisons are arrested again within three years, and three-quarters within nine years. So, the, quote, “recidivism rate” of people in the United States is far worse than even what Lindsey Graham is saying about these prisoners.

BAHER AZMY: Yes. This is really a made-up number. It’s garbage in, garbage out, like most of the Guantánamo project. You’re right. It starts with an assumption that people committed a crime to begin with. There was no — there were no criminal convictions. That’s the data we should be focusing on. And under the government’s own statistics, only 8% — evidence, only 8% were ever accused of being members of al-Qaeda or the Taliban, as we all, I hope, know by now. The overwhelming majority were picked up as a result of bounties and shipped to Guantánamo, where — officials later secretly recognized, and lawyers ultimately exposed, had absolutely nothing to do with terrorism. And this 31% number, it’s really — it’s preposterous on its own terms. It includes individuals — this particular number includes individuals who — for example, Uyghurs — were released and spoke to The New York Times. That’s the notion of returning to the fight that this number captures. Under our analysis, at most, there have been 12 who have done — a dozen or so who have actually sort of engaged in any sort of combatant activities after being released, out of 779.

JUAN GONZÁLEZ: And could you talk about the essential facts to understand about Judge Jackson’s work on Guantánamo cases?

BAHER AZMY: Yeah. So, she is one of many hundreds of individuals, from sort of every thread of the legal profession — federal public defenders; big corporate law firms; NGOs, like my organization, the Center for Constitutional Rights, which was responsible for coordinating a lot of these legal efforts; academics; and, ultimately, a global movement — to challenge this profoundly extraconstitutional project of arbitrary detention and abuse there. And what she was doing by representing individual detainees was challenging the executive branch to ensure that any kind of detention of human beings is done pursuant to law and not just executive fiat. And in so doing, she was part of a really — a project that exposed so many of the lies and brutality undergirding Guantánamo. And I think that’s an obviously useful perspective that connects the law to the lived experience of individuals who are harmed by the law. And I hope that will be a useful perspective on the court.

AMY GOODMAN: And the specific people that she represented, the four people, have since been released. Also, this issue that Cornyn said she called them war criminals, she actually didn’t use that word. In the brief — and I’m looking — there are number of pieces on this, this one in The New York Times: “The petitions each named Mr. Bush and Mr. Rumsfeld — along with two senior military officers who oversaw the Guantánamo detention operation — in their official capacities as respondents. And, they said, such officials’ acts in ordering or condoning the alleged torture and other inhumane treatment of the detainees ‘constitute war crimes and/or crimes against humanity in violation of the law of nations under the Alien Tort Statute.’” If you could end with that, Baher Azmy, the accusations against Bush and Rumsfeld and the government for how prisoners were treated?

BAHER AZMY: Yeah. So, in her petition, she alleged what we know to be true, that individuals detained in Guantánamo were subject to torture. And what follows from that, under well-established international law, including international law [inaudible] was responsible for promulgating, particularly after Nuremberg, those constitute war crimes. So, it’s a bit of a sort of fallacious gotcha in the hearing to say she sort of literally accused them of war crimes. But I want to be clear: Donald Rumsfeld is credibly accused of war crimes, and he’s never been held accountable for that, although we brought a case in German courts accusing him of war crimes in Guantánamo and elsewhere. And as we, you know, focus on the devastation and destruction in Ukraine, it’s worth remembering the onslaught of devastation and destruction brought by Bush and Rumsfeld in Iraq, Afghanistan and elsewhere.

AMY GOODMAN: Baher Azmy is legal director of the Center of Constitutional Rights.

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