Ketanji Brown Jackson, Guantanamo and the Role of Defense Attorneys

Back in March 2010, a few months before this site came into existence, I drafted and circulated a joint public letter on a matter of public controversy—the first and only time I have done such a thing. The matter in question was the presence in the Justice Department of several attorneys who had either represented Guantanamo detainees or done policy advocacy work on behalf of detainees. These attorneys had come under attack in right-wing circles on Capitol Hill and in the media. And it seemed to me that those of us who supported tough counterterrorism policies had an obligation to speak up on behalf of the role of defense lawyers in the system. 

“As attorneys, former officials, and policy specialists who have worked on detention issues, we consider these attacks both unjust to the individuals in question and destructive of any attempt to build lasting mechanisms for counterterrorism adjudications,” we wrote. “To suggest that the Justice Department should not employ talented lawyers who have advocated on behalf of detainees maligns the patriotism of people who have taken honorable positions on contested questions and demands a uniformity of background and view in government service from which no administration would benefit.”

It also, we contended, 

undermine[s] the Justice system more broadly. In terrorism detentions and trials alike, defense lawyers are playing, and will continue to play, a key role. . . . Good defense counsel is thus key to ensuring that military commissions, federal juries, and federal judges have access to the best arguments and most rigorous factual presentations before making crucial decisions that affect both national security and paramount liberty interests . . . . [T]hose who take up that function do a service to the system.

The letter was signed by a number of conservative legal luminaries as well as policy area experts and several people who went on to write regularly for Lawfare.

Unfortunately, this old argument seems to have become relevant again, this time in the context of Judge Ketanji Brown Jackson’s confirmation hearing to serve as an associate justice of the Supreme Court. Twelve years after I drafted that letter, Republican senators appear to be gearing up to focus Judge Jackson’s confirmation hearing—which begins Monday—at least in part on her legal work as a public defender and a private practice attorney on behalf of Guantanamo detainees in a fashion eerily reminiscent of 2010. 

Sen. Josh Hawley has expressed concern on the subject, according to the Kansas City Star:

Hawley said in a press conference he was concerned with Jackson’s representation of Guantanamo Bay detainees. Jackson was assigned to defend four detainees while she served as a federal public defender, but Hawley said he questioned her decision to continue defending them once she moved back into private practice. “She volunteered to continue that representation in private practice, which I think is interesting,” Hawley said. “And frankly, from my point of view, a little concerning. This isn’t just the filing of amicus briefs.”

Sen. John Cornyn has suggested that Judge Jackson will face questions about these representations in hearings, according to The Hill—which also reports that the Republican National Committee has stated that “Jackson’s ‘advocacy’ goes ‘beyond just giving them [Guantanamo detainees] a competent defense.”   

“Despite Jackson’s claim that she did not get to choose her clients as a public defender, she continued to advocate for Guantanamo terrorists when she went into private practice,” The Hill quotes the RNC as saying. 

Sens. Ben Sasse and Charles Grassley and Tom Cotton have actually already grilled Judge Jackson about her Guantanamo representations in oral or written questions submitted regarding her two prior nominations to the federal bench.

It’s too early to tell at this stage whether this idea—that there’s something wrong with her detainee representations and advocacy—will emerge as a major line of attack on Judge Jackson or not. That said, allow me to reiterate, rewritten slightly for the specific occasion, the point my cosignatories and I made more than a decade ago. I speak only for myself on this occasion.

That Judge Jackson in previous legal practice, either as a public defender or at a law firm, represented Guantanamo detainees, advocated for changes to detention policy, or filed amicus briefs in detainee cases is not a reasonable basis to oppose her nomination. As someone who has worked on detention issues since Guantanamo opened and has often sided with the government on matters related to the law and policy of detention, I consider the suggestion that her prior detainee representations somehow disqualifies her both unjust to Judge Jackson and corrosive of the now two-decades-long attempt to build lasting mechanisms for counterterrorism adjudications. 

The American tradition of zealous representation of unpopular clients is at least as old as John Adams’s representation of the British soldiers charged in the Boston massacre. People come to the bench with a diverse array of prior private clients; that is one of the strengths of the American judiciary.

American counterterrorism policy after Sept. 11 raised any number of novel legal questions, which collectively created a significant role in judicial, executive and legislative forums alike for honorable advocacy on behalf of detainees and those who opposed U.S. policy. In several key cases, detainee advocates prevailed before the Supreme Court. In a great many others, they assisted clients in presenting important information to courts and to executive branch review panels.

To suggest that the Supreme Court should not have among its justices lawyers who advocated on behalf of detainees maligns the patriotism of people who have taken honorable positions on contested questions and demands a uniformity of background and view in judicial service from which the judiciary would not benefit.

The suggestion also undermines the justice system more broadly. In terrorism detentions and trials alike, defense lawyers have played, and will continue to play, a key role—in military commissions, in federal court trials, in habeas cases and in advocacy before executive review panels. Good defense counsel is thus key to ensuring that adjudicators have access to the best arguments and most rigorous factual presentations before making crucial decisions that affect both national security and paramount liberty interests. To delegitimize the role detainee counsel play is to demand adjudications and policymaking stripped of a full record. In taking up the representation of detainees, Judge Jackson did a service to the system. 

In our current polarized politics, senators don’t really need a reason to vote against a nominee of the opposite party. I certainly don’t expect Republican senators will support Judge Jackson, and my point here isn’t naively to suggest that they do so. That said, there are better and worse reasons for senators to behave exactly as we expect them to. And I can think of very few worse reasons to oppose Judge Jackson than holding against her the service she did the system years ago.