SCOTUS - If she is confirmed by the Senate next week, Judge Ketanji Brown Jackson would arguably become the most accomplished Justice on the Supreme Court, and the first to have served as a public defender.
It’s no surprise that the first Black woman nominated to the highest court in the country would face intense scrutiny in her confirmation hearings, and indeed, the questioning she endured was not only aggressive but often vicious.
Even prior to the hearings, members of the GOP signaled that they would be focusing in part on her defense of Guantanamo prisoners during her time as a public defender and certain briefs filed while she was in private practice. Leading the charge, Senators Lindsey Graham (R-SC) and Tom Cotton (R-AR) sought to discredit Judge Jackson’s work as a public defender by conflating her attempts to secure constitutional rights for the men who have been unlawfully detained, and subject to torture, at Guantanamo Bay, with support for violence. The Islamophobia on display in this line of questioning was sometimes shockingly blatant, as when Sen. Cotton asked Judge Jackson if she thought the detainees were terrorists or all “innocent goat farmers” (this was far from the first time Tom Cotton referred to Guantanamo prisoners as goat farmers). The fundamental injustice of these narratives being weaponized to diminish Judge Jackson’s considerable experience and credentials—makes this background of Islamophobia incredibly problematic.
For more than two decades Guantanamo has been a monolith in the public imagination, constructed as a faraway site for containing a kind of faceless evil; the men held there are seen as presumptively guilty of the most heinous crimes. This presumption is baked into rhetorical questions such as Sen. Cotton’s, laced with racist and dehumanizing imagery. This kind of inferiorizing of Guantanamo detainees functions to preclude the possibility that any of the men, constructed as less than human, could ever be innocent. Would the US be safer, Cotton continued, if all the men at Guantanamo were released? The default assumption here is again that the detainees are either guilty, or, alternately, that their release would present a threat to the US’s national security regardless of guilt. And underlying this assumption is not only the notion that the US’s program of indefinite detention, and, more broadly, its “War on Terror” launched in the aftermath of 9/11 is valid, but that the conduct of the United States is beyond reproach.
The logical fallacy of the War on Terror was fully borne out through Senator Graham’s questions and comments on Guantanamo. While Graham stated his support for the idea that everyone deserves defense, he quickly moved on from that rote talking point to the business of collectively condemning all of Guantanamo’s prisoners, past and present. In other contexts, perhaps the irony of this position would have been recognized, but when it comes to Guantanamo—a place where the government has over that past two decades, constructed and perpetuated so many toxic narratives on the inherent criminality of the men held there—this narrative was wholly consistent.
Leaning into the logic of collective responsibility that has animated the War on Terror, Graham asked Judge Jackson what she thought about the rate of recidivism amongst released Guantanamo detainees, which he cited as 31%. Identifying specific individuals as recidivists, he proceeded to recite the names of former prisoners who have gone on to occupy positions within the Taliban. It is, of course, worth noting that not one of these individuals were among those whom Judge Jackson had defended. Instead of establishing a factual connection, Sen. Graham relied on the power of fear based in widespread acceptance of Islamophobic narratives to discourage pushback.
Its rootedness in Islamophobia is not the only issue with Graham’s statement, however—it also contains serious factual errors. For one thing, the recidivism rate he stated is based on the premise that those who ended up at Guantanamo were guilty or reasonably presumed guilty, a designation that relies on their supposed capture while in the act of waging war against the United States (as opposed to being detained on evidence of having committed a crime, which would require a much higher standard of evidence.) However, 86% of the prisoners detained at Guantanamo were not in fact captured on the battlefield. In addition, the majority of Guantanamo’s prisoners have never been charged with, much less convicted of, any crime (According to The Bridge Initiative only 1.3% of the Muslim men and boys have been charged and only .3% have been convicted). It is difficult to conceive of how a person might be considered to reoffend when they’ve never been convicted of an offense in the first place.
Islamophobia is the backbone of the system of oppression that has been in operation at Guantanamo since its inception, which has lent credence to the nonsensical notion that prisoner detention should continue indefinitely, on the basis that, due to their past crimes or their experiences while in custody, detainees can never be cleared of crimes that they may potentially commit upon release. Embedded in this idea is the notion that even if prisoners were wrongly detained without charge or conviction, they may commit an act of terrorism in the future because of the abuse they have been subjected to at Guantanamo. In other words, the US’s failure to take accountability for the crimes it committed against these men results in them being punished twice over - first by being detained without recourse to due process, and second by the continuation of their unjust detention based on the US’s stated inability to determine whether they might pose a threat upon release. The latter assumption in particular is rooted in widespread tropes of Muslim rage, fostered through media and government discourse, that portray Muslim cultures as uncivilied and governed by irrational urges toward destruction and domination.
Digging deeper into the numbers tells a much different story than the one Sen. Graham attempts to pass off as accepted truth. For example, in a government report from August 2020, 17.1% of former prisoners had reportedly reengaged in terrorism via the government’s metric of association with a group, such as the Taliban, that has been designated a terrorist organization. Another, smaller, percentage of released detainees—14.3%—was flagged by the government as suspected of reengaging in terrorism. These numbers should be viewed with skepticism in part because the US government provides little information about how they are derived, and because it has a vested interest in justifying the continued existence of Guantanamo vis-a-vis the fear tactics of recidivism. More crucially, however, it should be noted that the range of behavior the government considers recidivism is shockingly broad, including any expression of Anti-American sentiment or publicly sharing of their stories of indefinite detention and abuse while in US custody.
Wrapped up in Senator Graham’s comments and questions as well were larger ideological questions about the War on Terror and how it has been fought. At one point during his line of questioning, he asked Judge Jackson if the US was still at war. Of course, this was a rhetorical question meant to pigeonhole Judge Jackson into an affirmative answer to avoid being constructed as supportive of terrorism and/or against the interventions the United States has relied on since 9/11 to target the threat—real or constructed—of future acts of violence. Graham’s question was also meant to articulate his support and alignment with the specific post 9/11 framework that is deeply rooted in Islamophobia and which justifies the worst excesses of the Executive branch. This includes the ongoing detention of prisoners until the War is over.
Another ideological question raised concerns the differentiation between crime and war—one that would have been logical on its face, had it not been clearly and solidly rooted in the post 9/11 paradigm where, by virtue of the identity of the attackers as Muslims, terrorism was constructed as an act of war to justify the nebulous and sprawling war on terror apparatus. The War on Terror has thus not only been used to legitimize brutal state violence, but to allow the United States to lay claim to a unique victimhood status that precludes the possibility of any accountability whatsoever. This means that even when the United States government has undeniably committed war crimes, the greater offense is naming them, than that they happened in the first place. This was evident in Senator Graham’s remarks that Judge Jackson went too far in an amicus brief she wrote in support of a prisoner's case that asserted not that members of the US government were war criminals, but that torture constitutes a war crime. This same concern was brought up by Senator Cotton who asked Judge Jackson about the difference between making an allegation that war crimes were committed, versus the specific accusation that the accused were themselves war criminals.
If this reveals anything about how Islamophobia has operated post 9/11, it’s that Muslims are so dehumanized that the state taking offense to empirical evidence of crimes committed, takes complete precedence over the violence inflicted on Muslims. Equally alarming is the chilling effect that such questioning is likely to have on future candidates for the bench that may otherwise feel called to defend the rights of the most vulnerable and precarious defendants.
Judge Jackson is more than qualified to join the SCOTUS bench. That’s why it’s important to see past the blatant weaponization of Islamophobia to undermine her candidacy. For a position in the highest court that makes some of the most consequential decisions, Judge Jackson should be evaluated on the basis of her merit, not through the lens of a system of oppression that has been allowed to thrive for far too long in the War on Terror.
(Dr. Maha Hilal is a researcher and writer on institutionalized Islamophobia and author of the book Innocent Until Proven Muslim: Islamophobia, the War on Terror, and the Muslim Experience Since 9/11. Her writings have appeared in Vox, Al Jazeera, Middle East Eye,Newsweek, Business Insider, and Common Dreams among others. She is the founding Executive Director of the Muslim Counterpublics Lab, an organizer with Witness Against Torture and a Council member of the School of the Americas Watch. She earned her doctorate in May 2014 from the Department of Justice, Law and Society at American University in Washington, D.C. She received her Master's Degree in Counseling and her Bachelor's Degree in Sociology from the University of Wisconsin-Madison. This article was featured in Common Dreams.)