GOP Lawmakers Express ‘Concern’ Over Biden Supreme Court Pick Representing Guantanamo Prisoners

With a 6-3 majority, conservatives wield decisive control over the US Supreme Court, the ostensibly nonpartisan high court that exercises final and discretionary appellate jurisdiction over federal courts, and reviews laws and cases for constitutionality.

Several conservative lawmakers have fretted in recent days over news that US President Joe Biden’s nominee for an open seat on the US Supreme Court, Judge Ketanji Brown Jackson, served as legal counsel for detainees at the US prison in Guantanamo Bay, Cuba.

“We did talk about her representation of Guantánamo Bay detainees. I expressed some concern about this,” US Sen. Josh Hawley (R-MO) said recently, according to The Hill.

“I imagine that that will be something we'll want to ask her about. [...] I'm going to have some more questions about that,” Hawley added.

Jackson was nominated by Biden last month to replace Justice Stephen Breyer on the high court after Breyer announced his retirement. She is presently a federal judge on the US Court of Appeals in Washington, DC, and if her nomination is confirmed, Jackson would become the first Black woman to sit on the Supreme Court.

The road to the high court is long and grueling, however, requiring her to run a gauntlet of criticism and examination in the US Senate, which is divided evenly between Republicans and Democrats.

One major subject of scrutiny in Jackson’s career has been her defense of Khi Ali Gul, an Afghan man who was arrested in 2002 and transferred to the Guantanamo Bay detention camp the following year, according to US documents published by WikiLeaks. When Gul sued the Bush administration in 2008 in an attempt to obtain a writ of habeas corpus - a legal right for US prisoners to hear the charges against them - in 2008, Jackson assisted in his representation. At the time, she worked as a public defender, a lawyer in the US legal system who is employed by the court to represent defendants who cannot afford their own legal representation.

Gul’s appeal was denied and he was released and repatriated in 2014 without having been charged with a crime.

Since opening the War on Terror in the aftermath of the September 11, 2001, terrorist attacks, the US has held hundreds of people at the Guantanamo Bay prison under a legal fiction of being “enemy combatants” as a means of denying them the legal rights and protections ordinarily afforded to prisoners, including prisoners of war, under US law. Many have been tortured at the hands of US agents and almost none have been charged with crimes.

After Jackson entered private practice, she submitted an amicus brief in at least one other case involving a Guantanamo detainee.

Jackson has been scrutinized for these actions before. At a confirmation hearing in 2012, when she was nominated to be a district court judge, Sen. Chuck Grassley (R-IA) suggested that her record raised “some concern about how you will handle terrorism cases that may come before you.”

“In all of those situations, the views that were expressed were the views of my clients that I represented,” Jackson told Grassley about the Guantanamo detainee cases. “The briefs did not necessarily represent my personal views with regard to the war on terror or anything else.”