Bush and Rumsfeld Listed As War Criminals In Guantanamo Case Comes Up in SCOTUS Hearing

The amount of preparation that goes into Supreme Court confirmation hearings is so immense that it’s rare to see a nominee actually surprised by a question. Yet that seemed to be the case when GOP senators asked Judge Ketanji Brown Jackson about allegedly having called George W. Bush and Donald H. Rumsfeld “war criminals.” You could perhaps forgive her for being a little surprised, since that skips over all kinds of nuance. 

But the exchanges brought into the open an emerging argument on the right: that lawyers, even public defenders, shouldn’t represent certain clients in specific ways — or perhaps even represent them at all. The exchanges came around noon on Tuesday. Both Sens. Lindsey O. Graham (R-S.C.) and John Cornyn (R-Tex.) asked Jackson about a filing that said the Bush administration had committed war crimes. 

Cornyn suggested this was out of character from what he knew about Jackson. “Why in the world would you call Secretary of Defense Rumsfeld and George W. Bush war criminals in a legal filing?” Cornyn asked. Jackson paused and appeared confused: “Senator, are you talking about briefs that I — or habeas [corpus] petitions that I filed?” 

Cornyn re-upped the charge, noting that it came in the context of defending a member of the Taliban. “Well, senator, I don’t remember that particular reference,” Jackson said, “and 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.” 

Certainly, it would be difficult to call someone a war criminal without intending to disparage them. But it’s worth going over what this is about. The legal filing at issue was indeed a habeas corpus petition for a Guantánamo Bay detainee, Khi Ali Gul. Jackson also filed petitions with similar language in two other cases. 

It’s not clear which Cornyn meant to refer to, but that first case is the main one that is often cited. The petitions alleged that the detainees had been tortured in captivity and named Bush and Rumsfeld as respondents. 

“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 law of nations under the Alien Tort Statute” and the Geneva Conventions, states the Gul petition. So Bush and Rumsfeld are respondents, and the filing says the “Respondents’ acts … constitute war crimes.” Ipso facto, the filing accused them of war crimes — and, it would seem to follow, of being war criminals. 

One key thing to note, as law professor Steve Vladeck does, is that Bush and Rumsfeld are named in the petitions because they have to be, to clear procedural hurdles. (Indeed, these petitions later named Barack Obama after the administration changed.) Another is that they are named in their official capacities, not because of actions they took in these individual cases. 

Senate Judiciary Committee Chairman Richard J. Durbin (D-Ill.) later followed up on this issue, saying, “To be clear, there was no time where you called President Bush or Secretary Rumsfeld a, quote, ‘war criminal’ ” — apparently objecting to the implication Jackson had so directly applied that label. Jackson agreed with Durbin’s characterization.