March 23, 2022

Following Durbin's Questioning, Judge Jackson Reiterates Her Duty as a Public Defender was to Provide the Right to Counsel

Various news outlets debunked the misleading claim that Judge Jackson called President Bush and Defense Secretary Rumsfeld “war criminals”

WASHINGTON – U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, today questioned Judge Ketanji Brown Jackson about her role as a public defender, specifically to clarify Senator John Cornyn’s (R-TX) false claims that she called former President George W. Bush and Secretary of Defense Donald Rumsfeld “war criminals,” on the third day of the Senate Judiciary Committee’s hearing on her nomination to be an Associate Justice of the Supreme Court.

The Sixth Amendment to the Constitution guarantees the right to counsel for criminal defendants—and Judge Jackson has shown unwavering fidelity to the Constitution. It is a foundational principle in the legal profession that a lawyer’s representation of a client does not constitute an endorsement of the client’s views. Public defenders have an ethical obligation to represent their clients to the best of their ability. Various news outlets including CNN and the New York Times fact-checked Cornyn’s claims, finding that they were “a distortion and lack[ed] context”.

Durbin read part of the New York Times analysis into the record, noting it said: “[Judge Jackson] was one of several lawyers [who] in 2005 sign[ed] four [essentially] boilerplate habeas corpus petitions on behalf of detainees at Guantanamo [Bay] that claimed the [United States] Government had tortured [the men and that] such acts that ‘constitute war crimes.’… The petitions each named Mr. Bush and Mr. Rumsfeld –along with two senior military officers who oversaw the Guantanamo detention operation – in their official capacities as respondents.”

Durbin went on, saying, “The larger point is that Jackson was acting as the detainees’ lawyer in her role as defending lawyer. One of the underpinnings of the justice system [is] that even the most vile criminals have a right to a vigorous defense. Would you like to comment on that statement that I just made?”

Judge Jackson replied, “Well, Senator, I would just say that public defenders don't choose their clients. And yet, they have to provide vigorous advocacy. That is the duty of a lawyer. As a judge now, I see the importance of having lawyers who make arguments, who make allegations. In the context of a habeas petition, especially early in the process of the response to the horrible attacks of 9/11, lawyers were helping the courts to assess the permissible extent of executive authority by making arguments. We were assigned as public defenders. We had very little information because of the confidentiality or classified nature of a lot of the record and as an appellate lawyer, it was my obligation to file habeas petitions on behalf of my clients.”

Judge Jackson worked from 2005 to 2007 in the Office of the Federal Public Defender in Washington, D.C. At the time, the D.C. District Court was the exclusive venue charged with reviewing the legal claims of Guantanamo Bay detainees.  During her service as a public defender, Judge Jackson filed several habeas petitions against the United States which named former President Bush and former Secretary Rumsfeld in their official capacities. She was advocating on behalf of individuals who argued that they were civilians wrongly classified as enemy combatants of the United States, as part of her professional responsibility to zealously advocate for her clients.

In those petitions, the individuals raised more than a dozen claims for relief – one of which was an allegation that the government had sanctioned torture against the individuals, constituting war crimes under the Alien Tort Statute. The Alien Tort Statute allows courts to hear cases for alleged violations of the law of nations or a treaty of the United States. Judge Jackson did not call President Bush or Secretary Rumsfeld a “war criminal.”

Many Republican national security experts and former officials previously defended lawyers who represented Guantanamo detainees, or who otherwise engaged on advocacy regarding the many complex, unprecedented legal issues that arose after the September 11 attacks. Republican Committee members also argued during the last administration that Trump judicial nominees should not be held accountable for the views and actions of their clients.

Video of Durbin’s questions in Committee is available here.

Audio of Durbin’s questions in Committee is available here.

Footage of Durbin’s questions in Committee is available here for TV Stations.

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