Muller's broader definition of "torture" would presumably be expansive enough to cover the "severe" interrogation tactics the Times says the administration -- with Justice Department approval -- has authorized for suspected al-Qaida members. According to the Times, those practices include something called "waterboarding" -- a process by which a detainee is strapped to a board, held underwater and made to believe that he'll drown if he doesn't give interrogators the information that they want.

A "pedestrian" definition of "torture and that sort of thing" would also encompass the abuse U.S. soldiers visited upon Iraqi prisoners at Abu Ghraib. Indeed, many in the human rights community say that the Abu Ghraib abuses fit even a narrow, legalistic definition of torture. "This is torture with a capital 'T,'" said Pearlstein, the Human Rights First attorney. "You can't strip somebody naked, strap wires to him, and sic angry dogs on him under any definition of torture -- under U.S. law, under international law or otherwise."

Of course, the justice didn't know enough to ask Clement about Abu Ghraib on April 28 because Gen. Myers had, until then, persuaded CBS to delay broadcasting photographs of the abuse that took place there. Muller wants to know more about Myers' efforts, and who was involved in them. Myers told the Senate Armed Services Committee that, while he worked with Rumsfeld's staff on efforts to delay the CBS broadcast, he did not discuss the issue with Rumsfeld himself. But did he discuss his efforts with anyone in the Justice Department? Did he act with an eye toward the upcoming Supreme Court arguments?

"I would be damned curious," Muller said. "For the military to do that at the same time they've got the Padilla case pending is deeply troubling. If someone at Justice knew, or if someone at OLC had been told that the military was going to ask for a delay, that's scandal material right there. There you've got Justice manipulating the Supreme Court."

In the end, it's not clear that such manipulation would have helped the administration's cause. Indeed, there's a chance it will backfire now. "If the theory was, 'Let's delay this until after the argument, and that's going to make a difference,' then that was clearly wrong," said Elliot Mincberg of People for the American Way. "The justices read the newspapers and watch television, and they're clearly going to know about this."

They already do. Justices Anthony Kennedy and Sandra Day O'Connor met with a panel of Iraqi judges in the Netherlands earlier this month, and they said afterward that they had conveyed to the Iraqis -- subtly, for fear of exposing any bias in court-martial cases to come -- their concern over the Abu Ghraib abuses. In a follow-up interview with the Associated Press, Kennedy said the Iraqi judges "innately knew, instinctively knew, how concerned we were" about what happened at Abu Ghraib.

The question now is whether that concern will spill over into the court's decisions in the cases of Jose Padilla, Yaser Hamdi and the detainees currently being held at Guantánamo Bay. The conditions of confinement and the techniques used in interrogation aren't directly at issue in these cases; indeed, the lawyers challenging the administration's policies don't have enough information about their clients' situations to make meaningful arguments about the way they've been treated.

Donna Newman has represented Padilla for more than two years now. But ask her today whether he has been abused while in military custody, and she'll tell you she has absolutely no idea. "I don't know, and neither does anyone else," Newman told Salon last week. "I don't mean to suggest that Mr. Padilla has been abused. But the thing is, I just don't know."

Newman met with her client when he was in civilian custody, before he was declared an enemy combatant and swept away into a Navy brig in June 2002. In the ensuing year and half, the Department of Defense denied Newman any contact with Padilla. Early this year, when Padilla's case was pending before the Supreme Court, the Department of Defense finally allowed Newman and her co-counsel, Andrew Patel, to meet with Padilla -- largely as window dressing for the Supreme Court, and even then only with a Department of Defense lawyer in the room and a video camera running.

Among the conditions the Department of Defense imposed on the meeting: "We were prohibited from asking him about the conditions of his confinement," Patel says.

By barring Padilla's lawyers from asking about the conditions of his confinement, the Department of Defense prevented them from gathering information they might need to protect him. By failing to inform the Supreme Court about the abuses at Abu Ghraib and the interrogation policies the administration has adopted, the Justice Department -- inadvertently or intentionally -- prevented the justices from possessing information highly relevant to the question of just how much they should trust the administration.

In the words of the Bush administration, none of that really matters. As Clement told the Supreme Court on April 28, "The fact that executive discretion in a war situation can be abused is not a good and sufficient reason for judicial micromanagement and overseeing of that authority."

When the Supreme Court begins handing down decisions this summer, the executive will learn if the judicial branch agrees.

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