WASHINGTON — Sen. John Cornyn (R-Texas) defended his assertion that Supreme Court nominee Ketanji Brown Jackson called then-President George W. Bush and his Pentagon chief “war criminals,” rejecting Democrats’ contention Wednesday that he distorted her petitions on behalf of militants detained at Guantánamo Bay.
“The record is plain as it can be that she accused them of war crimes,” he said. “I don’t understand the difference between calling somebody a war criminal and accusing them of war crimes. Maybe in some some other foreign language that I don’t frankly understand, maybe that wouldn’t make sense, but not in accordance with a common understanding of the English language.”
Democrats, however, insisted that Cornyn had unfairly twisted Jackson’s petitions on behalf of prisoners held at the U.S. naval base in Cuba.
The petitions do not use the term “war criminal.” But the filings do note that torture is a war crime, banned by U.S. and international law, and asserts that the former president, Defense Secretary Donald Rumsfeld, and two military officers in charge of Guantánamo also named as defendants in their official capacities had authorized torture.
For Cornyn, that’s a semantic distinction. For Democrats, it’s a critical difference.
“These charges don’t hold up,” said Senate Judiciary Chairman Dick Durbin, D-Ill., revisiting Cornyn’s line of attack early on Day 3 of Jackson’s hearing to succeed retiring Justice Stephen Breyer.
Durbin offered Jackson a chance Wednesday to respond to Cornyn’s assertion.
“Public defenders don’t choose their clients and yet they have to provide vigorous advocacy,” she said. “That’s the duty of a lawyer, and 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....We had very little information because of the... classified nature of a lot of the record.”
In the War Crimes Act of 1996, Congress made it illegal to commit a “grave breach” of the Geneva Conventions.
The Bush administration maintained that waterboarding and other harsh interrogation methods did not constitute torture as defined by U.S. and international law.
Jackson and other lawyers appointed to represent Guantánamo begged to differ.
In December 2005, Jackson, then a federal public defender, filed writs of habeas corpus seeking the release of several men being held at Guantánamo. Each included similar language.
“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,” Jackson wrote in one such filing.
Such acts, she argued, violate the Geneva Conventions and other treaties and laws of war and “as a result of Respondents’ unlawful conduct, Petitioner Khiali-Gul has been and is forced to suffer severe physical and psychological abuse and agony, and is therefore entitled to declaratory, and injunctive relief, and such other relief as the court may deem appropriate.”
That was the basis for Cornyn’s allegation.
“Why in the world would you call Secretary of Defense Rumsfeld and George W. Bush war criminals in a legal filing?” he said during Tuesday’s session at the Senate Judiciary Committee.
When she seemed puzzled, he elaborated.
“I’m talking about when you were representing a member of the Taliban and the Department of Defense identified him as an intelligence officer of the Taliban and you referred to the secretary of defense and the sitting president of the United States as war criminals. Why would you do something like that? It seems so out of character,” he said.
Jackson averred that she didn’t remember such a reference, adding that “I did not intend to disparage the president or the secretary of defense.”
After a lunch break, Durbin pointed out that at no point in Jackson’s petitions was anyone accused of being a “war criminal.”
On Wednesday morning, Cornyn complained that Durbin had gone out of his way “to editorialize and contradict points” made by himself and other Republicans.
He returned to the topic in the afternoon in his second round of questioning.
“In common understanding and in plain English, when you accuse someone of a crime, are you accusing them of being a criminal?” he asked Jackson.
“It depends on the circumstances," she said.
They went back and forth on that and when it was clear she would not concede the point, Cornyn said: “I just don’t think that’s credible, judge.”
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