Supreme Court Frontrunner Was a Zealous Advocate for Gitmo Terror Suspects

Ketanji Brown Jackson pushed conspiracy theories about Bush administration policies, records show

February 7, 2022

Supreme Court frontrunner Judge Ketanji Brown Jackson was an active and dedicated advocate for terror suspects housed at Guantanamo Bay, contrary to press accounts and her own representations.

Jackson has portrayed her work for the detainees as that of a disinterested professional fulfilling an assignment. But a Washington Free Beacon review of court filings dating back to 2005 indicates that Jackson was deeply committed to equal treatment for accused terrorists. Her advocacy was zealous and often resembled ideological cause lawyering, even in her capacity as a public defender. At times, she flirted with unsubstantiated left-wing theories that were debunked by government investigators. On other occasions, she accused Justice Department lawyers of egregious misconduct with little evidence.

As a federal public defender, Jackson represented a Guantanamo detainee accused of attacking a U.S. military base in Afghanistan. She continued to advocate on behalf of detainees and attack Bush-era detention policies in the Supreme Court after she left public service for private practice.

President Joe Biden's approval numbers tumbled after the chaotic withdrawal from Afghanistan last summer. A retread of the War on Terror could be unwelcome for the administration, especially as new developments reveal the extent of the government's ineptness. Leaked Situation Room documents released by Axios Wednesday show that top administration officials were scrambling to plan a mass evacuation of civilians as late as Aug. 14, the day before Taliban forces reached Kabul. The White House did not respond to the Free Beacon's request for comment.

Jackson's public defender unit was charged with representing Guantanamo inmates who challenged their incarceration in a federal court in Washington, D.C. Jackson's client was a detainee named Khiali-Gul, who maintained that he was an innocent man wrongfully detained.

"I had a job in Mr. Karzai's government and I have done personal favors for the Americans and helped them," Gul said in a 2005 court filing.

U.S. investigators reached quite different conclusions about Gul. A 2008 Defense Department assessment states that Gul was a Taliban intelligence officer and the likely leader of a terror cell near the city of Khost. The cell met at his home on Dec. 1, 2002, to plan a rocket attack on a coalition forward-operating base, which took place just hours after the gathering. A separate Defense assessment flagged a possible meeting with Osama bin Laden in November 2001.

In written exchanges with Republican lawmakers ahead of her confirmation to an appeals court last year, Jackson emphasized that she represented Gul in her capacity as a government lawyer duty-bound to advocate for all indigent defendants. She implied but did not say she did so under orders. The Washington Post presented the facts along those lines in a Jan. 27 story about her prospective nomination.

But filings Jackson submitted for Gul were hardly perfunctory. In 2005 she filed a petition on Gul's behalf that went well beyond the particulars of his case to broadly assail Bush administration War on Terror policies. For example, she accused the government of pioneering torture tactics used at the Abu Ghraib prison in Iraq on Guantanamo inmates.

"Many of the most egregious interrogation techniques used in the Abu Ghraib detention center and other detention facilities in Iraq—such as the use of aggressive dogs to intimidate detainees, sexual humiliation, stress positions, and sensory deprivation—were pioneered at Guantanamo," she wrote, by way of arguing her client was subject to inhumane confinement conditions.

Such allegations were common among Democratic lawmakers and left-wing advocacy groups. But a 2005 report of the Pentagon inspector general, much of which remains classified, rejects that assessment. Testifying before the Senate Armed Services Committee in 2005, Vice Admiral Albert Church rejected any such Abu Ghraib-Gitmo nexus.

Jackson also criticized the "extraordinary rendition" program, through which detainees were secretly transferred to countries where prolonged detention and torture could be practiced. Gul was never subject to the program, making the criticisms afield of the dispute. He was ultimately repatriated to his native Afghanistan.

Later in the course of Gul's case, Jackson would accuse government lawyers of serious ethical breaches. In 2006, she asked the judge who presided over Gul's case to sanction Justice Department lawyers over the government's response to a rash of detainee suicides. Sanctions are reserved for serious misconduct and are always embarrassing to those involved. Penalties range from remedial classes to suspension or disbarment in the relevant court.

Three Guantanamo detainees committed suicide on June 10, 2006, by hanging themselves in their cells. Rear Admiral Harry Harris, who then commanded at Guantanamo, called the incident a coordinated protest act. The suicides followed a May uprising in which inmates attacked guards with fan blades and broken light fixtures, as well as revelations that some inmates were hoarding prescription medications.

The Naval Criminal Investigative Service (NCIS) immediately began probing the suicides, fearing that more inmates planned to kill themselves or attack camp personnel. The NCIS seized personal papers from some detainees, including Gul, to determine the extent of the conspiracy, if any.

Some of those papers included legal materials that were shielded from the government by court order and attorney-client privilege. After the seizure, the government asked the D.C. federal court to establish a "filter team" to separate the protected legal materials from items pertinent to the NCIS investigation.

Jackson accused the government of violating detainee rights to confer privately with counsel. She also suggested that the government tried to hide the seizure from the court in the first place, and she urged U.S. District Judge James Robertson to impose sanctions.

Justice Department lawyers did not mince words in their response to Jackson and lawyers for other prisoners who accused them of wrongdoing. They emphasized that the NCIS is an independent investigative agency that makes its own decisions. It would not conspire with the Pentagon or military leadership at Guantanamo to undermine a detainee’s legal defense, they said.

"Petitioners' filings reflect a penchant for ignoring or dismissing as lies any fact or matter inconsistent with a preconceived 'torture narrative' concerning Guantanamo," Justice Department lawyers wrote.

Robertson, a Clinton appointee who sided with detainees in other matters, rejected the request for sanctions without remark, and he said the NCIS was justified in its steps.

The Defense Department on Dec. 20, 2014, announced Gul's repatriation to Afghanistan under an executive order from then-president Barack Obama that required the intelligence community to determine whether Guantanamo detainees should be released, transferred, or prosecuted. The 2008 assessment predicted he would resume his extremist activities without close supervision.

The Free Beacon was unable to determine whether Gul reenlisted with the Taliban ahead of the terrorist group's rapid conquest of Afghanistan in 2021. Other Guantanamo prisoners did so. Ex-detainee Gholam Ruhani maintained that he was "a simple shopkeeper who helped Americans" in court papers while fighting his five-year detention at the naval base. He was among the commandos who last August stormed the presidential palace, and he appeared on camera in former Afghan president Ashraf Ghani's office cradling a machine gun and reciting the Quran.

The White House and other Jackson allies are likely to distance themselves from Gul by asserting she was duty-bound to represent him. And Jackson herself noted in a written exchange with lawmakers on the Senate Judiciary Committee that her brother was an Army infantryman who deployed to Iraq.

"I was keenly and personally mindful of the tragic and deplorable circumstances that gave rise to the U.S. government's apprehension and detention of the persons who were secured at Guantanamo Bay," she wrote.

But Jackson continued to advocate for Gitmo prisoners after she left the government for private practice, which further undercuts claims that she simply discharged a professional duty in representing Gul.

Jackson had a hand in one of the most important detention disputes in the War on Terror, a 2008 Supreme Court case called Boumediene v. Bush. As an appeals lawyer at Morrison & Foerster, she and two other lawyers filed an amicus brief in Boumediene on behalf of retired federal judges who were backing Guantanamo prisoners who asserted a constitutional right to challenge their confinement in federal court.

The brief argued that some detention decisions were based on statements extracted from torture. Extant procedures to review those decisions crafted by Congress and the Bush administration didn't do enough to weed out that problem, Jackson said.

An al Qaeda sleeper agent captured on U.S. soil also had the benefit of Jackson's advocacy. Authorities in Peoria, Ill., arrested Ali Saleh Kahlah al Marri in December 2001 for fraud, then designated him an enemy combatant and ordered his detention at a naval brig in Charleston, S.C. Al Marri's case was a rallying point for civil libertarians who believed it represented federal trampling of constitutional rights after Sept. 11. Al Marri was held by the military for years without charge or trial, even though he was a legal U.S. resident at the time of his arrest.

Jackson filed an amicus brief that backed Al Marri, this time on behalf of libertarian groups such as the Cato Institute, when his case reached the Supreme Court. The justices never had occasion to decide the matter, however, because the Obama administration decided to charge him in the civilian judicial system.

Al Marri in 2009 ultimately pleaded guilty to conspiracy to provide material support to al Qaeda. He admitted to attending terrorist training camps, planning chemical attacks on waterways and tunnels, and secretly communicating with other terrorists. He served six years at the federal Supermax facility in Florence, Colo., before he returned to Qatar in 2015.

Biden plans to name his nominee by the end of the month.