Ketanji Brown Jackson didn’t call Bush, Rumsfeld ‘war criminals’ as she defended Gitmo detainees

From 2005 to 2007, Supreme Court nominee Ketanji Brown Jackson worked as a federal public defender, often representing clients who couldn’t afford lawyers of their own — including Guantanamo Bay detainees. 

Republican senators have called Jackson’s experience as a federal public defender into question during her confirmation hearings. 

Sen. John Cornyn, R-Texas, repeatedly claimed that, while defending clients accused of terrorism, Jackson called former President George W. Bush and former Defense Secretary Donald Rumsfeld "war criminals."

"I don’t know you well, but I’ve been impressed by our interaction, and you’ve been gracious and charming," Cornyn said on March 22. "Why in the world would you call Secretary of Defense Rumsfeld and George W. Bush war criminals in a legal filing? It seems so out of character for you."

Jackson asked if he was referring to habeas petitions she’d filed, and Cornyn said he was talking about when she’d represented a man the Defense Department had identified as an "intelligence officer for the Taliban."

"You referred to the secretary of defense and the sitting president of the United States as ‘war criminals,’" he said.

"I was representing my clients and making arguments," Jackson replied. "I’d have to take a look at what you meant. I did not intend to disparage the president or the secretary of defense."

On March 23, Cornyn again made this claim, saying Jackson "accused (Bush and Rumsfeld) of war crimes. Now, I don’t understand the difference between calling somebody a ‘war criminal’ and accusing them of war crimes."

Cornyn based his claim on habeas petitions from 2005, which Jackson co-filed on behalf of people detained at Guantanamo Bay, the New York Times reported. A habeas petition refers to civil action against an agent that holds a defendant in custody.

The petitions named as respondents Bush and Rumsfeld, in their official capacities, and two Guantanamo Bay officials. The Times said they were "essentially boilerplate habeas corpus petitions" that allege the U.S. government had tortured the detainees.

The petition filed on behalf of Khiali-Gul, for example, reads: "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 Geneva Conventions.

The petition alleged that "severe physical and psychological abuse and agony" were intentionally inflicted on Khiali-Gul in an effort to coerce him into providing information or confessions. It said that he had been severely beaten, interrogated while chained in painful positions, exposed to extreme temperatures, held in isolation for prolonged periods of time and deprived of adequate medical care, among other things. 

Drew Brandewie, a spokesperson for Cornyn, said, "If someone is being accused of war crimes, then they are implicitly being accused of being a war criminal." He also emphasized the number of petitions: "This wasn’t a one-off, random instance. It was deliberate, multiple times."

But legal experts told PolitiFact that simply filing a brief that alleges a respondent’s actions "constitute war crimes" is not tantamount to calling a person a war criminal.

Victor Romero, a professor at Penn State Law, said it wasn’t fair to claim that arguments made on behalf of a client are equivalent to a lawyer making a direct accusation. 

"To do so would fundamentally misunderstand the lawyer’s professional role to be a zealous advocate by mistaking such arguments as the equivalent of that person’s private opinion," he said.

This is especially true in the case of a habeas petition. Bush and Rumsfeld were named "because they had ultimate control over Judge Jackson’s client’s liberty," said Jonathan Hafetz, a professor at Seton Hall Law School. The petition’s purpose was to "determine the legality of her client’s detention."

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The petitions were "essentially a template" and identical language was used by other lawyers in different detainee petitions, according to a New York Times report.

"It is important for a defense attorney to zealously raise all possible defenses," said Leila Sadat, a law professor at Washington University and senior research scholar at Yale Law School.

Asked to address Cornyn’s claims, Jackson said public defenders don’t choose their clients but must "provide vigorous advocacy." With regards to the petitions filed, she said: "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."

Stephen Vladeck, the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law, said in a series of tweets that the implication that Jackson specifically called Bush and Rumsfeld war criminals was, "at the very least, misleading." 

The filings had to name Bush and Rumsfeld for procedural reasons, Vladeck said, and the respondents named in the petitions "automatically changed" when President Barack Obama was inaugurated in 2009.

And when President Obama came to office on January 20, 2009, the captions automatically changed, so that they became [Detainee] v. Obama instead of [Detainee] v. Bush — reinforcing the point that naming these defendants officially is not a claim about their personal conduct.

— Steve Vladeck (@steve_vladeck) March 22, 2022

Brandewie, Cornyn’s spokesperson, said that even if Jackson was "required" to name Bush and Rumsfeld, that "doesn’t negate her accusation or somehow make it not count. It’s context, maybe, but it doesn’t devalue the meaning of what she wrote in the petition." 

Penn State’s Romero countered that alleging a law has been violated is "not the same as a court declaring after a trial that one is a ‘war criminal.’"

"No reasonable person would mistake an attorney’s claim made in the service of their client with their personal opinion about the criminality of an individual," he said. 

Cornyn claimed Jackson referred to former President George W. Bush and former Defense Secretary Donald Rumsfeld as "war criminals in a legal filing." 

Jackson co-filed habeas petitions that alleged Bush and Rumsfeld had mistreated and tortured Guantanamo Bay detainees in ways that "constitute war crimes." But the filings did not call either man a "war criminal." 

Experts said that, as a defense lawyer, Jackson was obligated to raise all possible defenses on behalf of her clients. In addition, they said it is unfair to claim that arguments a lawyer has made on behalf of a client are equivalent to that lawyer making direct accusations of criminality. 

Cornyn’s statement is partially accurate but leaves out important details and context. We rate it Half True.

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CORRECTION: We updated the story with the correct affiliation of legal expert Leila Sadat.