TUESDAY, MARCH 29, 2022
Delivering script to one world: Last night, we watched the thirty minutes all over again. We even jotted down notes.
We were watching for maybe the third or fourth time. In truth, we saw nothing which struck us as shocking. We saw nothing which even came close.
We refer to Lindsey Graham's thirty-minute exchange with Judge Ketanji Brown Jackson on Tuesday morning, March 22. You can watch the whole thing yourselves, through the underutilized miracle of this C-Span videotape.
(Click on "Sen. Graham Questions.")
On that occasion, Graham became the fourth senator (out of 22!) to interview Jackson during last week's confirmation hearings. To our eye, the thirty minutes proceeded roughly like this:
For something like the first ten minutes, Graham voiced a series of complaints about the way other nominees to federal courts had been treated in the past. He never suggested that any of this had been Judge Jackson's doing or fault.
As we suggested yesterday, the comity was general during this part of the session. Now, Graham turned to a new line of questioning, and this exchange occurred:
GRAHAM (3/22/22): So now let's talk about Gitmo. Being a public defender, did you consider that rewarding?
JACKSON: Senator, yes, I did, because public service is very important to me. It is an important family value. It is something that now I dedicated my career to.
GRAHAM: Yes. And do you think it's important to the system that everybody be represented?
JACKSON: Absolutely. It's a core constitutional value.
GRAHAM: You'll get no complaint from me. That was my job in the Air Force. I was an Air Defense Counsel. I represented anybody that came in the door, whether I liked them or not. I did my best. Is that what you did?
JACKSON: Yes, sir.
GRAHAM: Okay, good. Now, so the American people deserve a system where everybody's represented, whether you like them or not, and anybody who takes up that cause, no problem with me. You're just doing your job and I think you make our country stronger.
The pair were still playing together quite nicely at this point.
At this point, Graham finally began to voice an objection to an amicus brief Jackson had filed while representing a Gitmo detainee.
As we'll show you below, it eventually became clear that Graham thought the amicus brief had been very poorly advised. But even this part of the interview started off in this cheerful way:
GRAHAM (continuing directly): But there's the other side of the story that never gets mentioned when I talk about Gitmo. The American people deserve a system that can keep terrorists off the battlefield. They deserve a system that understands the difference between being at war and in crime.
Do you consider 9/11—you said "a terrible tragic event." Would you consider it an act of war?
JACKSON: Yes, Senator.
GRAHAM: Okay. I would too. I think it was an act of war byAl Qaeda and associated groups against the people of the United States.
So, as you are rightfully proud of your services as a public defender and you represented Gitmo detainees, which is part of our system, I want you to understand, and the nation to understand, what's been happening at Gitmo.
What's the recidivism rate at Gitmo?
JACKSON: Senator, I'm not aware.
GRAHAM: It's 31 percent. How does that strike you? Is that high, low, about right?
JACKSON: I don't know how it strikes me overall.
GRAHAM: You know how it strikes me? It strikes me as terrible.
JACKSON: Yes, that's what I was going to say.
GRAHAM: Okay, good. We found common ground.
Even as the new discussion began, the pair still held common ground.
Lacking a background in the law, we can't say that we really understand the discussion which followed. Nor have we seen any major pundits attempt to clarify what was said for the benefit of us non-experts.
But Graham seemed to say that Jackson's brief had been an exercise in poor judgment. We can't evaluate that claim, but as the clock struck 11:05 A.M. that day, here's what he eventually said:
GRAHAM: I'm not holding the clients' views against you. Like the people you represented at Gitmo, they deserve representation.
But this is a amicus brief, where you and other people try to persuade the court to change policy.
The policy I described is a periodic review. If the court had taken the position argued in the brief that you signed upon, it would have to release these people [from Gitmo] or try them.
In some of them, the evidence we can't disclose, because it's classified. You're putting America in an untenable position. This is not the way you fight a war. If you try to do this in World War II, they'd run you out of town.
We hold enemy combatants as a threat. There's no magic passage of time that you've got to let go.
So my question is very simple. Do you support the idea, did you support then the idea then, that indefinite detention of an enemy combatant is unlawful?
JACKSON: Respectfully, Senator, when you are an attorney and you have clients who come to you, whether they pay or not, you represent their positions before the court.
GRAHAM: I'm sure everybody at Gitmo wants out. I got that.
This is an amicus brief. And I just don't understand what you're saying, quite frankly.
I'm not holding it against you because you represented a legal position I disagree with. I mean, that happens all the time. I'm just trying to understand what made you join this cause, and you say somebody hired you.
But did you feel OK in adopting that cause? I mean, when you signed on to the brief, were you not advocating that position to the court?
JACKSON: Senator, as a judge now, in order to determine the lawfulness or unlawfulness of any particular issue, I need to receive briefs and information, making positions on all sides.
GRAHAM: I got what a judge is all about. Listen, I'm not asking you to decide the case in front of me right here.
I'm asking you to explain a position you took as a lawyer regarding the law of war. And I am beyond confused.
I know what you said in your brief. Whether I agree with it or not is not the point. I just want you to understand that it's important for all of us to know where you were coming from.
If that brief had been accepted by the court, it would be impossible for us to fight this war because there's some people who are going to die in jail in Gitmo and never go to trial for a lot of good reasons, because the evidence against them is so sensitive, we can't disclose it to the public.
We're not charging them with a crime. What we're doing is saying that you engaged in hostile activities against the United States, that you are an enemy combatant under our law and you'll never be released as long as you're a danger until the war is over or you're no longer a danger. That's the difference between fighting a crime and a war.
It seemed to us that Jackson was uncomfortable during the bulk of this lengthy discussion. In the portion we've just posted, we couldn't tell whether Graham's overall position about Jackson's past conduct actually made good sense. At times, it seemed to us that Jackson was looking for ways to avoid Graham's questions, but we can't exactly be sure.
At any rate, it never seemed to us that Graham was asking some sort of inappropriate question, or that Jackson wasn't being given every chance to answer and explain. And we're sorry, but no:
It never seemed to us that Graham was conducting himself, during this thirty-minute session, in a way which was hostile, rude or otherwise inappropriate. We couldn't evaluate some of his claims, but his deportment struck us as normal.
A few additional lines of question followed before his thirty minutes were done. (And yes, he ended on time.) Those questions were pursued in a somewhat cursory fashion—but on at least one occasion, overt comity prevailed again.
Having said that, we'll also say this about Graham's initial thirty minutes:
We lack the background which would let us evaluate the discussion about that amicus brief. Near the end of the session, a few of Graham's concerns struck us perhaps as a bit petty.
That said, most of his concerns didn't strike us that way. Beyond that, we're forced to say it:
We saw nothing that was inappropriate, insulting or rude in the course of Graham's discussion this day. He often complimented Judge Jackson. They agreed on quite a few points.
For us, that's the way the session seemed—until the gigantic Senate committee took its first fifteen-minute break. At that point, CNN's pundit panel came center stage, and we got a chance to see part of the process by which we in this country have come to be living in (at least) two different worlds.
Yesterday, we showed you some of what was said on CNN during that first break. Tomorrow, we'll show you more.
As Americans, we live in at least two different worlds, with many micro-worlds forming. In our view, each of those worlds is badly served by the various "jugglers and clowns" who script our childish narrative dreams, who rush to tell us what we should think and also what we should say.
Tomorrow: "Shocking" and beyond
Oh, dear God. Aren't there things in this universe more important than CNN dembot drivel about stupid confirmation of some dembot judge?ReplyDelete
This is getting unbearable, dear Bob.
As far as I know, you aren't forced to endure this.Delete
We are so flattered by your kind attention to our humble persona.Delete
Graham took issue with an amicus brief that Jackson submitted as part of her job as a public defender of clients at Gitmo. He said he disagreed and asked Jackson whether she would hold the same position today.ReplyDelete
This is inappropriate because (1) we are not in the same position with Al Qaeda today, (2) Jackson is no longer working in that public defender position but has been working as a judge, a job with different requirements and responsibilities, (3) the brief never represented Jackson's personal opinions, which she did state to Graham, (4) Graham's characterization of her brief as being against a country at war is extreme and inappropriate and neglects the rights of the defendants Jackson was paid to represent, regardless of her own feelings about their actions (because that is what a public defender does in fulfillment of the right of every defendant to have competent legal representation).
Graham's failure to recognize that Jackson was performing the duties of her job, not expressing personal beliefs during the representation of her Gitmo clients is what is wrong with his questioning, in my opinion.
Graham is clearly trying to portray Jackson as a traitor to the USA working on behalf of Al Qaeda members. That is very far from her role and unfair of Graham to characterize as her personal belief. He knows better and he should not have framed this as Jackson being disloyal to the USA.
As has been repeatedly pointed out, John Adams did the same thing when he defended British soldiers after the Boston Massacre, as a public defender who provided necessary legal representation in a situation where no one else would do it. Adams not only defended those British soldiers, while himself being an organizer of the American Revolution, but he set aside his personal beliefs to do so, because it is a principle of American law that everyone has a right to a competent defense, no matter who they are and regardless of ability to pay.
Jackson is no more guilty of disloyalty during war than John Adams was. It is wrong of Graham to imply she was "soft" on terrorism or sympathetic to Al Qaeda because of her work.
A couple things. First, Jackson wasn't defending anybody in particular here - she submitted an "amicus" brief, which means "friend of the court," and therefore that brief (on behalf of her client) was advocating a particular position, not defending any defendant.Delete
Second, I think that Graham was definitely trying to get Jackson to say something that he could later use to say that she was soft on terrorists. That's likely why Jackson might have appeared to be avoiding direct answers to his questions.
Finally, the issue is a real issue for us in the US - what are we supposed to do with these "enemy combatants," who aren't in any formal army nor in any defined "war," and who therefore are never going to have their guilt tried or be given a chance to be free again.
This is a difficult issue. On the one hand, we might be releasing people who will, upon being released, look to commit terrorist acts against Americans or others. On the other hand, if we argue simply that we need to hold them until they die without trial, because allowing them to be tried would require disclosing information that implicates national security, that seems to be pretty untenable, too. Moreover, it conflicts with a fundamental view of what America is about - what if some of those people aren't, in fact, guilty? What if they've changed? Is the national security information really something that could be harmful, would it actually be released, etc.?
These are serious questions, but for some reason we never seem to be able to have real discussions about serious issues.
uh here are a couple things, where this issue was "discussed":Delete
Rasul v. Bush
Boumediene v. Bush
Somerby writes "At times, it seemed to us that Jackson was looking for ways to avoid Graham's questions", and then carefully avoids how Jackson addressed this issue, here is what Somerby does not want you to know, here is part of Jackson's response on that subject in the Senate hearing:
Jackson, March 22: In 2004, the Supreme Court ruled that the executive did have the authority to make those detentions [of enemy combatants at Guantanamo Bay] in one case and then in another case, the Supreme Court ruled that anyone so detained could file a legal challenge. They had habeas rights and as you know, habeas is in the Constitution. In 2005, I joined the Federal Public Defender’s Office, and those cases started coming in, the requests from detainees asking for legal representation consistent with our constitutional scheme to have help to file their habeas petitions. This was very early in the days of these kinds of legal actions; there was a lot unknown about what these petitions could look like, what arguments could be made, and considered by the court and perhaps most importantly, what the facts were related to any of these individuals, because almost everything was classified. So defense counsel was getting these people in with no information.
I was in the appellate division of my office. And as an appellate defender, I worked on legal issues. … I was paired with a trial defender who attempted to do the fact-gathering, who traveled to Guantanamo Bay. I never traveled there, anything like that. I worked on the law. And as you noted, the law was very uncertain. This was brand new, and people were trying to figure out what are the limits of executive authority in this context. We knew that the Constitution was not suspended, even though we had this emergency. So what did that mean with respect to these individuals?
I filed, as a federal public defender, I was assigned to work on four cases. And I filed almost identical petitions because what you’re doing, especially when you have no facts, is just preserving legal arguments for your clients, that is consistent with what lawyers do.
And then you mentioned private practice. So I went into private practice in, I believe it was, 2007. And by that time, lots of private practices around the country had started taking on these cases because there were lots of people who needed representation, and so pro bono practices were receiving requests, usually through nonprofits. And one of the individuals that I had represented as a defender ended up being assigned to my firm, unbeknownst to me.
So I arrive at my firm, and the partners realized the same person was someone that, according to the docket, I had previously represented, and they asked if I would review some of his materials and continue the representation. That was the only person that I represented in the context of my private firm who was a detainee.
I worked on a couple of habeas briefs for judges and for a variety of … nonprofits including the Rutherford Institute, the Cato Institute and the Constitution Project, who were all interested in making arguments to the Supreme Court that was considering these very novel legal issues.
Somerby did not even bother to look up Graham's recidivism rate nonsense. According to the Office of the Director of National Intelligence (already we should be skeptical - an uneven track record, and a self serving nature) confirmed reengaging in terrorist activity is 17% (Graham adds the 14% that is only suspected of reengaging).
Somerby should watch the movie The Mauritanian to gain perspective on the nonsense he is putting out there, based on a true story about how one Gitmo detainee obtained his freedom.
Thank you -- this explanation is very helpful.Delete
Why does Somerby make a point of mentioning, repeatedly, Graham's agreement with Jackson, up to and until the point where he discusses that amicus brief? Does Somerby think that shows that Graham had no animus toward Jackson? It doesn't. It sets up Graham's hit job by underlining the point of disagreement -- which is apparently that Jackson had no right to fully represent detainees by filing a brief against indefinite detainment (aka the right to a speedy trial, which is part of American law) because "justice delayed is justice denied."ReplyDelete
"It never seemed to us that Graham was conducting himself, during this thirty-minute session, in a way which was hostile, rude or otherwise inappropriate. We couldn't evaluate some of his claims, but his deportment struck us as normal."ReplyDelete
So, it doesn't matter what Graham accuses Jackson of, even treason and being a supporter of terrorists, as long as he does it with proper deportment and an occasional compliment!
Notice how hard Somerby is working this week to defend the outrageous questioning of Republicans, pretending to us that there is nothing wrong with it and that it is the media and liberal outrage that is making Republicans seem bad -- because Somerby sees nothing wrong with Graham's deportment!
Nothing wrong with trying to convince viewers that if Jackson worked as a public defender for Guantanamo detainees, she must have approved of what they did and liked them as human beings, agreed with their actions. And Somerby considers that appropriate questioning! He doesn't see anything wrong with that tactic, as long as Graham wasn't shouting or being snide.
Somerby is smarter than that, as is Graham, who is deliberately playing upon the ignorance of mainstream American people and undermining our nation's committment to due process under the law, even for terrorists, murderers and other miscreants. Somerby knows better but he still defends Graham's questioning today.
No liberal would do this. No liberal regards Jackson as a terrorist-loving traitor to an America at war, because she worked as a public defender. That is Graham's disrespect, to portray her as such after she explained that she was doing her job, one that she believes in as a person committed to justice for all.
Somerby should be ashamed to have written this today. And no, he is not any kind of liberal. His failure to see the disrespect accorded Jackson by this questioning guarantees that. And no, there cannot be legitimate disagreement about such a thing -- this is a basic tenet of liberal support for equal justice, part of the Democratic Party platform and support for organizations such as ACLU and prisoner rights organizations. Liberals believe in justice. Somerby does not, based on his failure to see what is wrong with Graham's mischaracterization of Jackson's previous work.
I hope I never lose your approval. Not a liberal.. how does he sleep at nightDelete
Why is it not obvious to Somerby that Graham's attempt is to smear Jackson? Is Somerby arguing that Republicans have the right to use their questions to unfairly smear nominees? Does Somerby think it is OK to do that this way, as long as Graham doesn't yell or call names?ReplyDelete
One could, of course, argue that the Republicans can use their time saying whatever they wish. But these media commentators are not claiming they have no right to speak as they wish -- they are analyzing what Republicans said and pointing out the incorrectness or unfairness or demeaning nature of how Jackson was treated. If Republicans are going to say what they want about Jackson, then they must accpet the consequences, which are the others will call them out on it and point out their partisan motives. That is all the press is doing, and the Republicans brought it on themselves through their lack of restraint and willingness to mistreat Jackson. Her qualifications have earned her the respect shown at her previous hearings, not this kind of hit job.
"For us, that's the way the session seemed—until the gigantic Senate committee took its first fifteen-minute break."ReplyDelete
The committee has 22 members, 11 from each party. It has been roughly the same size going back to 2008 (no rosters in Wikipedia before then), so it is no larger now than it has been this century.
On what basis does Somerby call it "gigantic"? The committee includes subcomittees to perform different functions but is meeting as a committee of the whole for this nomination hearing, just as the Senate will meet as a whole to vote on the committee's recommendation. Is the Senate "gigantic" too?
This judiciary is roughly the same size as when Kavanaugh and Coney Barrett were nominated. In any case, it is the Senate's role to decide the size of its standing committees, not Somerby's, especially when he says he doesn't really understand what was going on during the hearing, as he has said both today and yesterday.
"In our view, each of those worlds is badly served by the various "jugglers and clowns" who script our childish narrative dreams, who rush to tell us what we should think and also what we should say."ReplyDelete
Take a bow, Bob Somerby, juggler extraordinaire and chief clown
Here, dear Bob, read this:ReplyDelete
The only way to write about dembottery is to ridicule it.
When is the war over, Senator Graham? Bob?ReplyDelete
I think we can all agree that the Oscar goes to Senator Graham for Best Performance by a Drama Queen In the Closet.
Was Oklahoma City bombing an act of war? It's an interesting formulation here because it goes counter to other claims, e.g. that people held at Gitmo are not prisoners of war.ReplyDelete
There are a couple of things that jumped out at me right off the bat. For instance, referring to acts of "recidivism" amongst the released Gitmo prisoners makes no sense, since they were never convicted of any crime in the first place.ReplyDelete
Graham is clever in his dishonesty. At first he invites her to accept his framework that 9/11 was an act of war. Then he asks her why she chose to give aid and comfort to the enemy by filing an Amicus Brief. If one were to tease apart all his claptrap, one would be struck by how nonsensical and dishonest it is.
"...referring to acts of "recidivism" amongst the released Gitmo prisoners makes no sense, since they were never convicted of any crime in the first place"Delete
Yes, if you're a robotic pedant.
...but then nothing any humyn being ever says makes sense.
That's an interesting observation. If you assume the conclusion of the argument, you don't have to debate it.Delete
For example, I could ask, have you stopped your compulsive gambling? Yes or no.
I'm assuming inside the question that you are a gambler.
And the more elaborate of a lie you can tell, the more the other person looks like they're deflecting by tracing your logic back to the first lie.
Liars love this and are very practiced at it, and will lash out in anger if you realize it's what they do.
What we have in Gitmo are a ragtag bunch swept of the streets in Afghanistan and Pakistan. Just about no one has been accused of any crime or tried for any crime. No evidence has ever been seen or presented. Is that too pedantic for you? Kafka had nothing on them.Delete
It seems perfectly clear what the clown meant. People detained and imprisoned for fighting against US interests kept fighting against US interests once there got released.Delete
This seems so obvious, that if you're unable to figure it out, then ...well... never mind.
@Anon: For example, I could ask, have you stopped your compulsive gambling? Yes or no.Delete
That's exactly right! In fact, I thought about using exactly this type of example.
We don't know exactly -- or even at all -- what is it that prisoners had done in the first place, so what does it mean when Graham says that they reoffend?
Did they join Taliban? So what? The US negotiated with the Taliban and may even recognize their legitimacy. And in the end, what difference does it make if they did join the Taliban. It's not like any single person makes that much difference. The whole thing is preposterous.
First of all, you're wrong on basic facts: most prisoners in Gitmo were not detained "fighting against the US", which, by the way, would have made the prisoners of war. I don't see how fighting against the US in Afghanistan violates any US laws -- do you?Delete
Secondly, so what? So another hundred or so people has joined the Taliban. Does this make a hill of beans of difference?
Like we said, it's perfectly clear what the clown meant.Delete
He follows the standard official narrative: enemies captured, held, then some, deemed rehabilitated/harmless, released. If they act like enemies again, that's 'recidivism'. That's it.
US laws and other legalisms have nothing to do with it.
We know it, and you know it. It's no different than calling rioters "insurrectionists" or the president of your former motherland "dictator" and "war criminal".
That's the language. He speaks the language, people understand. You too understand, but pretend that you don't. Fine.
"indefinite detention" really is the proof by absurdity that sentences are very arbitrary.ReplyDelete
Whatever number of years you say you want to punish someone, I can think of one more. You want to lock him up for just ten years? Why not twenty? Why not Twenty Five?
At some point you're simply asking for full life sentences because you yourself pushed yourself there through sheer hyperbole. It's not even important if they're dangerous or not, just if you can think of a bigger number.
I don't think for a moment Republicans have read more than a paragraph about what affects recidivism rates.