WASHINGTON, D.C. — President Joe Biden’s Supreme Court nominee faces sharp questions from Republican lawmakers 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 raised questions about it at Senate hearings on her nomination that began Monday.
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.
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.
Jackson was assigned all four cases while working as a federal public defender from 2005 to 2007. She continued some of the 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 U.S. 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. Hawley also praised Jackson for “substantive answers” in her meeting with him.
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 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.
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.