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Fact Check-Judge Ketanji Brown Jackson did not personally accuse Donald Rumsfeld and George W. Bush of war crimes

On the second day of confirmation hearings for Judge Ketanji Brown Jackson’s nomination to the supreme court, two Republicans claimed she called former Defense Secretary Donald Rumsfeld and former President George W. Bush war criminals.

Senator John Cornyn put the accusation to Jackson, to which she responded: “I don’t remember that particular reference...I did not intend to disparage the president or the secretary of defense.” The allegation was also made by Senator Lindsey Graham of South Carolina. ( here )

Cornyn followed up his claim on Twitter with a post that includes the filing he is referring to: “Today I asked Judge Jackson why in the world she would accuse Secretary of Defense Rumsfeld and George W. Bush of being war criminals in a legal filing. Democrats claim she never said such a thing, so here's her filing for the record.” ( here ) The tweet has over a thousand likes.

The filing from 2005 is available to view in full ( here ).

Jackson, in her role as public defender, filed a petition on behalf of Guantanamo detainee Khiali-Gul. In it, she said Khiali-Gul had been tortured in violation of international law.

As U.S. national law specialist Steve Vladeck ( here ) told Reuters, the suggestion that Brown, in filing the brief, specifically calls Bush and Rumsfeld war criminals, is misleading.

“It is automatic for [such officials to be named on] Guantanamo habeas petitions… They had to name a person because of sovereign immunity rules that limit naming the government itself… Every Guantanamo habeas petition names the President and the Secretary of Defense as defendants – in their official, not personal, capacities.”

See Vladeck’s Twitter thread on the subject ( here ).

To infer from the filing that Jackson is personally accusing Bush and Rumsfeld of war crimes is misleading. The naming of Bush and Rumsfeld in the filing is not personal, their names had to be added to the filing because of the positions they held at the time.

Replying directly to Cornyn’s tweet, Vladeck writes: “Senator: As you know, the #GTMO detainees were required to name President Bush and Secretary Rumsfeld as defendants in their official capacities because they couldn’t sue “the United States” in general.”

Vladeck points out that when President Barack Obama took over, his name replaced that of Bush on the brief. “When President Obama came to office on January 20, 2009, the captions *automatically* changed,” he says ( here ).

Indeed, Obama’s name appears in the details of the case as well ( here ).

Jackson, President Joe Biden's U.S. Supreme Court nominee, on Tuesday defended her past legal representation of Guantanamo Bay detainees ( here ).

On a contentious second day of her Senate Judiciary Committee confirmation hearing that lasted about 13 hours, Jackson pledged to be an independent jurist who would not inject her own views into rulings as Democratic senators rallied to her defence.

Jackson said her past legal representation of detainees at the U.S. naval base at Guantanamo Bay, Cuba, was consistent with American values of fairness.

She worked from 2005 to 2007 as a court-appointed lawyer paid by the government to represent criminal defendants who could not afford counsel, including four Guantanamo detainees. She later continued representing one of the detainees in private practice.

Jackson was nominated by Biden in February to become the first black woman to serve on the nation’s top judicial body. If confirmed, Jackson would be the 116th justice to serve on the high court, the sixth woman and the third black person. The court also would have for the first time four women and two black justices.

VERDICT

Misleading. It is misleading to suggest that Judge Jackson personally accused Bush and Rumsfeld of war crimes. The former president and defense secretary were officially named in the filing because it is procedure to do so on this kind of petition.

This article was produced by the Reuters Fact Check team. Read more about our work to fact-check social media posts here.

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