When the Supreme Court heard oral arguments on April 28 in the cases of detained U.S. citizens Jose Padilla and Yaser Esam Hamdi, Justice Ruth Bader Ginsburg asked Deputy Solicitor General Paul Clement how the Court could be sure that government interrogators were not torturing the detainees. Clement was indignant. You just have to “trust the executive to make the kind of quintessential military judgments that are involved in things like that,” he told the Court. Later that evening, CBS News released the first photographs of torture at Abu Ghraib.
We may never know whether the photos of Abu Ghraib -- and the release of the Justice Department memos justifying torture that followed -- swayed the Court's decisions in the first three cases grown up out of our struggles against terrorism. Neither the multiple opinions in the Padilla and Hamdi cases, nor the Court's separate decision recognizing U.S. court jurisdiction over the detainees held at Guantanamo Bay, mentioned in so many words the revelations of the past two months. But the landmark decisions have a great deal to say about the idea of presidential power that undergirds the Bush administration's approach to torture and the law. They make it clear that even in the context of national security, the president must bend to the will of Congress and the courts -- not the other way around.
Take, for example, the case of Hamdi, in which the administration had argued that the president has inherent constitutional authority -- as commander in chief of the U.S. armed forces, not as a result of any law passed by Congress -- to detain indefinitely anyone picked up in the course of the global war on terrorism, and to hold them without a lawyer or access to meaningful judicial review.
This sweeping “inherent authority” notion was at the heart of the arguments advanced in the now famous torture memos prepared by the Department of Justice, leaked in the weeks since Clement stood before the Court. The memos in part outline how an administration official might defend against prosecution for torturing detainees (or other war crimes). Reviewing the federal anti-torture statute, senior administration lawyers concluded that reading the torture ban to “regulate the president's ability to detain and interrogate enemy combatants” would be an unconstitutional infringement on presidential power. In other words, Congress had no right to criminalize interrogation techniques the president believed necessary for waging the “war on terrorism.” Presidential power alone was a defense to criminal prosecution for otherwise illegal methods of interrogation.
The Hamdi ruling -- in which eight of nine justices concluded that Hamdi was entitled to more due process of law than the president thought -- renders the administration's power position obsolete. Writing for a plurality (or the main opinion), Justice Sandra Day O'Connor explained that to the extent that the president had the power to arrest and detain Hamdi at all, it came most clearly from authority granted by Congress in its authorization for the use of military force in Afghanistan -- where Hamdi was arrested -- in September 2001. Without reaching the question of the president's inherent authority under the Constitution, O'Connor also made clear that the Court was “necessarily reject[ing] the government's assertion that separation of powers principles mandate a heavily circumscribed role for the courts.”
Justices Antonin Scalia and John Paul Stevens wrote in a separate opinion to explain that the president's view of executive authority had overstepped constitutional bounds by historic proportions. “The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the executive,” Scalia wrote. Whether this interferes with the government's security interests, Scalia added, “I frankly do not know.” But it is neither in the courts' nor the executive's competence to determine that alone.
The refusal of eight justices to buy into the administration's broad executive-authority argument seems to deprive administration officials of their first defense against the kind of criminal prosecutions for coercive interrogation they evidently feared. Criminal prosecution may now be won for the grossly illegal conduct described by Major General Antonio Taguba's report, including beatings and rape -- conduct, of course, prohibited by no less than five federal criminal statutes and multiple international treaties, all of which the United States has signed and ratified. Justice may also be pursued for the illegal techniques that the secretary of defense himself authorized, including forcing detainees to strip and stand for hours in uncomfortable positions, and holding them at length in solitary confinement. The law is clear that the official who carries out such illegal conduct is not the only one liable for it; command officials are also responsible if they ordered the abuse, or if they knew or should have known that those under their command were committing it and failed to take reasonable steps to stop it. The Court's latest opinions affirm that the president's commander-in-chief power alone comes second to that of Congress and the courts. Being president (or his agent) is no criminal defense.
Whatever the effect on the decisions, the Abu Ghraib photos effected a sea change in public attention to the unchecked U.S. practice of global detention and interrogation since September 11. Justice Stevens may have been partly addressing this changed world in his dissent in Padilla -- the only one of the three cases Tuesday that didn't reach and reject the question of presidential power (deferring that issue for another day). Excoriating the Court for its failure to resolve the Padilla case on its merits now, Stevens quoted former Justice Felix Frankfurter in support of Stevens' assertion that unconstrained executive detention could not stand. “There is torture of mind as well as body; the will is as much affected by fear as by force,” Frankfurter had written. “And there comes a point where this Court should not be ignorant as judges of what we know as men.”
Deborah Pearlstein directs the U.S. Law and Security Program at Human Rights First (formerly known as the Lawyers Committee for Human Rights). She clerked for Justice John Paul Stevens during the Supreme Court's 1999-2000 term.