John Moore  /  AP
Military policemen guard a detainee processing center at the Abu Ghraib Prison on the outskirts of Baghdad.
By Tom Curry National affairs writer
msnbc.com
updated 5/11/2004 5:33:06 PM ET 2004-05-11T21:33:06

The Abu Ghraib prison abuse furor may have a significant impact on one highly select audience with power over the president’s anti-terrorism effort: the nine justices of the Supreme Court.

The court is now deliberating in the cases of al-Qaida suspects held at the Guantanamo Naval Base in Cuba and two American citizens, Jose Padilla and Yaser Hamdi, held in the United States as enemy combatants.

Decisions are expected in those historic cases before the court ends its term in June. At issue: whether Padilla, Hamdi, and the Guantanamo detainees should be granted hearings to challenge their detention.

Legal experts say that given the Abu Ghraib revelations, the justices may be less inclined to rule in favor of the Bush administration.

“It is always difficult to know how judges are affected by events. But judges, even Supreme Court justices, do not live outside the realities of the world around them,” said University of Chicago law professor Geoffrey Stone, who wrote a friend-of-the court brief opposing the Bush administration in the Guantanamo case.

“If the recent events in Iraq have any impact on the justices, it will likely be to make them less confident about giving broad deference to the executive on such matters,” Stone said.

Furor 'shouldn't affect' cases, but ...
Adam Charnes, a former law clerk for Justice Anthony Kennedy who now practices law with the firm of Kilpatrick Stockton in Winston-Salem, N.C., said, “the (Abu Ghraib) situation shouldn’t affect the answer to the legal questions at all” in the Guantanamo case.

But Charnes, who wrote a friend-of-the-court brief supporting the Bush administration in the Hamdi case, agreed that justices are not cloistered. “The justices are human beings. They read newspapers, they watch television,” he said.

Charnes noted that during the oral arguments in the Guantanamo case, some of the justices, especially Justice Stephen Breyer, were concerned that “if they rule that there is no (federal court) jurisdiction (over Guantanamo), then there would no oversight over the executive branch at all.”

The Abu Ghraib events “may make the marginal justices less willing to rely on the good faith of the executive branch,” Charnes said. They may wonder “whether decision-makers in Washington have sufficient control on the ground in Guantanamo.”

Frequently cited as the marginal or “swing” justices who might determine the outcome in these cases are Kennedy and Sandra Day O’Connor.

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Last week, the Defense Department said two Guantanamo guards had been disciplined for using excess force against detainees.

Given that the Bush administration is asking the court to allow it wide discretion in detaining suspects at Guantanamo, the Abu Ghraib revelations “are certainly going to make the justices very nervous,” said New York University Law School professor David Golove, an expert on constitutional and international law.

After the Abu Ghraib events, “I can’t believe it is not going to appear somewhere” in either the majority opinion in the Guantanamo case or in the dissents.

He suggested that Justices Breyer, Kennedy and O’Connor “might be thinking, ‘the worst thing we could do from a foreign policy perspective is to say we don’t have jurisdiction’ over Guantanamo.”

In his plea to the court, John Gibbons, the lawyer representing the Guantanamo plaintiffs, accused the Bush administration of seeking to “create a lawless enclave insulating the executive branch from any judicial scrutiny now or in the future."

Breyer seemed responsive to this argument.

“I'm still honestly most worried about the fact that there would be a large category of unchecked and uncheckable actions dealing with the detention of individuals that are being held in a place where America has power to do everything,” Breyer said during the April 20 oral argument.

Ginsburg wonders about torture
And Justice Ruth Bader Ginsburg raised the issue of torture.

“Suppose the executive says, `Mild torture, we think, will help get this information,’” Ginsburg said to Deputy Solicitor General Paul Clement. “Some systems do that to get information.”

“Well, our executive doesn't,” Clement replied. “And I think the fact that executive discretion in a war situation can be abused is not a good and sufficient reason for judicial micromanagement in overseeing of that authority. You have to recognize that in situations where there is a war, where the government is on a war footing, that you have to trust the executive.”

“Trust the executive” may be a slogan more difficult for the justices to accept in the wake of the Abu Ghraib events.

On the other hand, the justices seem acutely conscious that the enemy combatants and Guantanamo cases confront them with grave questions of national defense and even of national survival.

When Padilla’s lawyer argued that it is up to Congress, not the executive branch, to write new rules for the detention of terrorist suspects, O’Connor impatiently replied, “We are faced with a situation of the here and now, and what do we do? We just turn loose a ticking time bomb?"

U.S. SUPREME COURT ASSOCIATE JUSTICE BREYER POSES FOR A PICTURE IN WASHINGTON
Jason Reed  /  REUTERS
In a June 2001 decision, Justice Stephen Breyer said preventive detention of terrorist suspects may be justified in some cases.

And Breyer will likely play a key role in the court's decision because it was he who wrote the court's majority opinion in a case called Zadvydas vs. Davis handed down just three months before the Sept. 11 attacks. Speaking for the court, Breyer declared that “terrorism or other special circumstances” might justify “preventive detention” of non-citizens.

Cases of terrorism might require the courts to give “heightened deference to the judgments of the political branches with respect to matters of national security,” he said.

It will be years before historians can examine the papers of the justices to figure out how they arrive at their decisions in the enemy combatants cases.

Past Supreme Court decisions show that contemporaneous events sometimes do affect justices’ deliberations.

“There can be little doubt that the justices are not immune to events in the larger world,” said University of Chicago legal historian Dennis Hutchinson.

Slideshow: Abu Ghraib images

Reversal in flag salute case
He cites an intriguing example.

On June 3, 1940, the court ruled in a case called Minersville School District vs. Gobitis that students in public schools who were Jehovah's Witnesses could be forced to salute the flag, despite their religious objections to the practice.

But when the New Republic magazine in its Aug. 5, 1940, issue published an account of German Jehovah's Witnesses being punished for not giving the “Heil Hitler” salute, three justices, Hugo Black, William O. Douglas, and Frank Murphy, recanted their votes in the Gobitis case.

The court reversed itself three years later.

More frequently cited in recent months is a case from that same era in which some of the justices later looked back and regretted permitting executive branch action in wartime, the 1944 Korematsu case upholding the relocation of Japanese-Americans.

“Although Hugo Black defended (the) Korematsu (decision) afterwards, I think he, and most members of the court, saw it as a stain on the institution,” Hutchinson said.

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Video: Scandal's effect on high court

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