Balkinization  

Friday, May 14, 2004

JB

Misleading the Surpremes

The Supreme Court did not know of the revelations about Abu Ghriab when the Administration argued the Guantanamo Bay, Hamdi, and Padilla cases before it last month, and the Administration did not volunteer the information. Indeed, when Justice Ruth Bader Ginsburg asked Deputy Solicitor General Paul Clement in the Hamdi cases whether judicial review should be foreclosed even in cases of alleged torture, Clement dodged the question. "Our executive," he insisted, doesn't engage in torture. "Judicial micromanagement" was inappropriate in wartime; "you have to trust the executive."

In fact, the Justice Department did know about-- and approved-- the Administration's "stress and duress" techniques, like "water boarding"-- forcibly holding prisoners under water and making them believe that they will drown unless they cooperate. But conveniently, the government has defined the concept of "torture" to exclude these techniques so that it can technically claim that it "tortures" no one. Perhaps even worse, it has placed prisoners in the hands of other governments with the expectation that even more aggressive techniques will be employed, a practice that also violates the Geneva Conventions. All of this was kept from the Court at oral argument.

Although the Guantanamo Bay, Hamdi and Padilla cases have distinct legal issues from those raised in the current prison abuse scandals in Iraq, the question of whether the Administration can be trusted to protect human rights lies at the heart of all of these cases. The government's argument has been that the Administration needs no judicial oversight because the U.S. would never detain innocent people as enemcombatantsts and would never torture or abuse prisoners in its custody. These promises have turned out to be hollow.

There is no direct evidence that the Solicitor General's office knew at the time it argued these cases about the Justice Department's approval of coercive CIA interrogation techniques, or that it knew about the Red Cross's report given to the Bush Administration in 2003 detailing prisoner abuse and estimating that some 70 to 90 percent of the detainees in Iraqi prisons were innocent of any wrongdoing. At the very least, however, it would have been prudent for the government's lawyers to ask its client-- and other Justice Department officials-- before arguing its case before the Supreme Court. In light of these revelations, the government's representations that "our executive" doesn't engage in torture were seriously misleading. For more on the controversy, see Eric Muller and Unfogged.



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