Bad Takes: Sen. John Cornyn has no cause to criticize Kentanji Brown Jackson for 'war crimes' statement

As a public defender, Jackson was legally obligated to zealously advance every argument on behalf of her clients.

Sen. John Cornyn opens his yap at a speaking engagement.
Sen. John Cornyn opens his yap at a speaking engagement.
“A dream came true last week for U.S. Army aviators: they got their chance to loose avalanches of fire bombs on Tokyo and Nagoya, and they proved that, properly kindled, Japanese cities will burn like autumn leaves.

Never before had there been an incendiary attack of comparable scale. The Luftwaffe's ‘great fire raid’ on the City of London, made with a maximum of 200 tons of incendiaries, burned not more than one square mile. Major General Curtis LeMay's Marianas firebirds were in another league.

Cautious LeMay waited until pictorial proof was in before he issued his report: ‘This fire left nothing but twisted, tumbled-down rubble in its path. The area totally destroyed covers a total of 15 square miles’.” — Time Magazine, March 1945

Given what an irascible jerk U.S. Sen. Ted Cruz is, Texans often overlook the jackassery of Texas' other Republican senator. U.S. Sen. John Cornyn proves you can conceal a dagger more easily with politeness than with resting Cruz face.

Cornyn had questions last week for Supreme Court nominee Kentanji Brown Jackson, spending much of his allotted time railing against gay marriage and Roe v. Wade. But he also brought up writs of habeas corpus Jackson had written while representing suspected terrorists held at Guantanamo Bay in the mid-2000s.

As a public defender, she was legally obligated to zealously advance every argument on behalf of her clients, regardless of her private beliefs. In this capacity, that meant referencing alleged acts of torture committed against the detaintees.

Torture is a war crime. The torturer is, therefore, a war criminal, as is anyone higher up who authorized the torture. 

For the record, all four detainees whom Jackson represented were ultimately repatriated — three to Afghanistan, one to Saudi Arabia — and none was ever tried or convicted of any crime. Yet, in the words of the petitions, she wrote that the prisoners were "forced to suffer severe physical and psychological abuse and agony" due to "cruel, inhuman or degrading treatment."

Knowing that, here was Cornyn's smarmy question for Jackson: "I've been impressed by our interaction, and you've been gracious and charming; why in the world would you call Secretary of Defense Rumsfeld and George W. Bush 'war criminals' in a legal filing? It seems so out of character for you."

However, Jackson didn't use the term "war criminal" as such, and in her response, she explicitly disavowed any intent to disparage the former president or secretary of defense. As Victor Romero, professor at Penn State Law, told the fact-checkers, "No reasonable person would mistake an attorney’s claim made in the service of their client with their personal opinion about the criminality of an individual."

Perhaps a more salient question is, why would Cornyn suggest that it should somehow be "beyond the pale" to publicly refer to Bush and Rumsfeld as war criminals?

Consider the testimony of Richard Clarke, the former chief counter-terrorism adviser on the National Security Council under Clinton and Bush. "In my mind, at least, it's clear that some of the things that President Bush, Vice President Cheney and Defense Secretary Donald Rumsfeld did were war crimes," he said in 2014

That same year, then-president Barack Obama offered an even more blunt admission: "We tortured some folks." And the late Desmond Tutu had already said a couple year earlier that Bush and Prime Minister Tony Blair should be "made to answer for their actions in the Hague."

It's hard to disagree with Cornyn's assessment that we should speak "in plain English" on these matters, and that "being a war criminal has huge ramifications" since the accused "could be hauled before an international tribunal and tried for war crimes."

But President Joe Biden has had no trouble recently describing Vladimir Putin as a war criminal. At the risk of engaging in "whataboutism," ought we compare the scale of the toll on innocent civilians wrought by our respective militaries this century?

"Not for an instant would I want to minimize the horrors that are unfolding in Ukraine today and the deaths and the injuries inflicted on noncombatants, but let’s face it, the numbers are minuscule compared to the number of people that died, were displaced, were injured as a consequence of the US wars in Iraq and Afghanistan," retired U.S. Army Col. Andrew Bacevich, a historian specializing in U.S. foreign policy, said on Democracy Now.

Bacevich cited the Costs of War Project at Brown University, where he is a professor. The project estimates that more than 30 million people were displaced by post-9/11 wars in the Middle East, and hundreds of thousands have been killed directly in the U.S.-led invasions of Afghanistan and Iraq.

In an evocative speech in Warsaw, Poland on Saturday, Biden had a message for the Russian people.

"I refuse to believe that you, the Russian people, welcome the killing of innocent children and grandparents, or that you accept hospitals, schools, maternity wards being pummeled with Russian missiles and bombs," he said. "Millions of families are being driven from their homes, including half of all Ukraine's children. These are not the actions of a great nation."

Nations aspiring to greatness should apply the same moral standards to their enemies as themselves. And if the price of witnessing a dictator like Putin on trial at the International Criminal Court is for militarist cheerleaders like Cornyn to stop successfully normalizing the crimes — not mistakes, crimes — committed in our name, then all the better.

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