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Sunday, Nov 22, 2009
Defending the administration's enemy-combatant policy, the Justice Department told the Supreme Court that the U.S. doesn't torture prisoners. Just hours later, the Abu Ghraib story broke. Did the U.S. intentionally mislead the court?
May 17, 2004 | Just after 10 o'clock on the morning of April 28, a Justice Department attorney representing Secretary of Defense Donald Rumsfeld appeared before the Supreme Court to argue that the Bush administration is free to imprison a U.S. citizen for as long as it likes -- without a lawyer, without a hearing, without any contact with the outside world -- based solely on the president's determination that the citizen is an "enemy combatant" in the war on terror.
When skeptical justices asked about the risk that a detainee might be abused while in custody, Deputy Solicitor General Paul Clement told them they must "trust the executive to make the kind of quintessential military judgments that are involved in things like that." The government's interrogators understand that information obtained through coercion may be unreliable, Clement said, and they know that "the last thing you want to do is torture somebody or try to do something along those lines."
When Justice Ruth Bader Ginsburg noted that some governments engage in "mild torture" to obtain information, Clement shot back: "Well, our executive doesn't."
By the end of the day, the world had seen evidence to the contrary.
Just eight hours after Clement assured the Supreme Court that the United States would honor its legal obligation to refrain from "torture and that sort of thing," CBS aired photographs of U.S. soldiers abusing Iraqi prisoners to "soften them up" for interrogation at Abu Ghraib. The New York Times subsequently reported that the Bush administration has authorized the CIA to use interrogation techniques on suspected al-Qaida members so "severe" that the FBI has distanced itself from the interrogations to avoid "compromising" agents. And this weekend, Seymour Hersh reported in The New Yorker that Rumsfeld himself authorized the expansion into Iraq of a black-box program of physical coercion and sexual humiliation originally approved for use only in the hunt for al-Qaida in Afghanistan.
Whatever the truth of the latest Hersh report -- the Pentagon has already labeled it "outlandish, conspiratorial and filled with error and anonymous conjecture" -- the disconnect between Clement's words and the government's actions has raised serious questions about the trust to which the Bush administration claims to be entitled.
Did Clement know he was misleading the justices, or was he kept out of the loop so that he could avoid revealing truths that would undermine the administration's "trust us" arguments in the enemy combatant cases? Did Joint Chiefs of Staff Chairman Richard Myers persuade CBS to delay broadcasting the photographs from Abu Ghraib to protect the lives of U.S. soldiers -- or to spare the administration embarrassing questions during the Supreme Court arguments in the enemy combatant cases?
If U.S. soldiers and CIA agents are meting out abuse -- "mild torture" -- to random Iraqi prisoners in Abu Ghraib and suspected al-Qaida members elsewhere, what is the government doing to Jose Padilla, Yaser Hamdi and any other U.S. citizens it may be holding as enemy combatants? And if the Bush administration can't be trusted to tell the Supreme Court the truth about its interrogation techniques, how can it be trusted with the power to detain U.S. citizens indefinitely, without any oversight from the courts?
