Among the what-might-have-been questions of George W. Bush’s presidency is how his standing in public opinion would have fared had there been no Abu Ghraib prison abuse furor.
Justices of the U.S. Supreme Court hinted Monday that they, too, like the American public, have been influenced by Abu Ghraib.
Although overshadowed by Monday's Supreme Court decisions in the Guantanamo and Yaser Hamdi cases, the Jose Padilla decision — in which the court temporarily sidestepped the issue of whether the accused al-Qaida member deserves a hearing — is in some ways the most interesting of the three.
The dissenting opinion in the Padilla decision includes strong evidence that at least some of the justices were influenced by the Abu Ghraib prison abuse evidence and the recently leaked Justice Department memos that seemed to justify the torture of terrorism suspects in some cases.
Three justices joined Justice John Paul Stevens as he declared in his dissent that the court ought to immediately order a hearing for Padilla and give him the chance to try to prove his innocence.
Stevens assails detention
“Even more important than the method of selecting the people’s rulers and their successors is the character of the constraints imposed on the Executive by the rule of law,” Stevens wrote. “Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber,” a reference to the court used by the seventeenth-century Stuart kings in Britain to order torture and imprisonment of their opponents.
At that point, Stevens inserted a footnote raising the issue of torture. He quoted approvingly from a 1949 Supreme Court decision by Justice Felix Frankfurter in which the Supreme Court reversed the murder conviction of a man interrogated by police relay teams for five nights and days, without being advised of his right to counsel.
“There is torture of mind as well as body; the will is as much affected by fear as by force,” wrote Frankfurter. “And there comes a point where this Court should not be ignorant as judges of what we know as men.”
Although the abuses at Abu Ghraib have not come before the Supreme Court and might never come before it, Stevens was hinting that he and his fellow justices should not be — and weren’t — ignorant of the events at the now-infamous prison.
The government has argued that Padilla is an al-Qaida soldier. In his June 9, 2002, statement justifying Padilla’s detention, Bush said he “represents a continuing, present and grave danger to the national security of the United States,” such that his military detention “is necessary to prevent him from aiding al Qaeda in its efforts to attack the United States.”
A soldier or a subversive?
But Stevens took a quite different view: He used the term “subversive” to describe Padilla, almost implying he is akin to a political dissident or revolutionary.
Long-term detention of American citizens such as Padilla, Stevens said, cannot be justified “by the naked interest in using unlawful procedures to extract information. Incommunicado detention for months on end is such a procedure. Whether the information so procured is more or less reliable than that acquired by more extreme forms of torture is of no consequence.”
Is Stevens correct in calling Padilla’s two years of being held in the Charleston, S.C., Navy brig a form of torture?
For the answer, we will probably have to wait at least until a federal judge in South Carolina agrees to hear Padilla’s plea for a habeas corpus hearing.
Even if Padilla’s case eventually wends its way back up to the high court, there is likely to be considerable disagreement about whether his two-year confinement amounted to what Frankfurter called “torture of mind.”
But the potential for torture of prisoners held without trial away from lawyers and public hearings was on the minds of some of the justices before the photos of Abu Ghraib began inundating TV broadcasts, magazines and newspapers.
Prior concern about torture
During the oral argument in the Guantanamo detainees cases, Justice Ruth Bader Ginsburg posed a hypothetical to the lawyer arguing the Bush administration’s case, Deputy Solicitor General Paul Clement.
“Suppose the executive says, `Mild torture, we think, will help get this information,’” Ginsburg said to 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.”
It has not only been Abu Ghraib that has worn away some of that trust in the president.
America today is far more querulous and divided, far less confident in its war-making than President Franklin Roosevelt and the nation he led were in 1942 when the Supreme Court unanimously and swiftly approved the detention and execution of Nazi saboteurs who landed on the East Coast.
The old rules of war waged against a hostile ideology worked because the Nazis were based in a nation-state, Germany, that could be bombed into submission. This new war is neither so spatially or temporally bound.
The Bush administration has not tried Padilla and yet it won’t let him go. So too with Yaser Hamdi, who the court ruled Monday must be granted at least some form of hearing.
Scalia urges action by Congress
Justice Antonin Scalia complained in his dissent in the Hamdi case that neither the president nor Congress seemed willing to do their duty as the Constitution demands.
“Hamdi is entitled to a habeas decree requiring his release unless (1) criminal proceedings are promptly brought, or (2) Congress has suspended the writ of habeas corpus.”
Scalia wondered why Bush has not asked Congress to suspend the writ of habeas corpus, saying “if civil rights are to be curtailed during wartime, it must be done openly and democratically, as the Constitution requires” in Article I.
If Scalia is right and both the president and Congress are fastidiously shying away from the harsh, yet constitutional, measures that may be needed to fight terrorists, then it may be not only because of Abu Ghraib-induced queasiness, but because the public has lost the sense of urgency it had on Sept 12, 2001.
Kept out of the public eye, Jose Padilla now runs way behind Kobe Bryant and Scott Peterson as a subject of public fascination.